THE  FREEDOM 
OF  THE  SEA$ 


LOUISE  EARGO  BROW^ 


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THE  FREEDOM  OF  THE  SEAS 


•  .>,'  »%»  »  ••• 


THE  FREEDOM 
OF   THE   SEAS 

BY 

LOUISE  FARGO  BROWN 


NEW  YORK 
E.  P.  DUTTON  &  COMPANY 

68 1  Fifth  Avenue 


37 


Copyright,  1919 

BT 

B.  P.  DUTTON  &  COMPANY 


AU  Rights  Reserved 


PHnttd  in  the  United  States  of  America 


TO 

Jig   ^^ti^tV 


570937 


PREFACE 

ONE  way  of  attacking  the  vexed 
problem  of  what  is  meant  by  Free- 
dom of  the  Seas  is  to  attempt  to 
discover  what  the  phrase  has  meant  in  the 
past.  Since  it  has  again  and  again  been 
used  as  a  war  cry,  light  on  the  former  con- 
notations of  the  expression  may  mean  light 
on  its  significance  to-day  and  to-morrow. 
Therefore  the  main  phases  of  an  ancient 
controversy  are  outlined  in  these  pages  in 
the  hope  that  the  recital  may  at  least  stimu- 
late thought  at  the  present  time. 

The  study  makes  no  pretense  of  being  an 
exhaustive  presentation  of  the  subject.  The 
author  hopes  to  publish  later  in  a  more  ex- 
tended and  fully-documented  form  the  re- 
sults of  research  on  the  different  aspects 
of  freedom  of  the  seas  since  1713;  she 
wishes  to  express  her  great  indebtedness  for 

vii 


viii  PREFACE 

suggestions  as  to  the  earlier  period  to  Dr. 
Frances  G.  Davenport,  who  has  in  prepara- 
tion a  study  of  the  subject  covering  those 
years.  Thanks  are  also  due  to  Dr.  Daven- 
port, as  well  as  to  the  editor  of  the  Unpopu- 
lar Review,  for  permission  to  incorporate 
passages  from  an  article  of  joint  authorship 
which  appeared  in  that  periodical.  The 
author  wishes  to  give  public  expression  to 
her  gratitude  to  Miss  Lucy  M.  Salmon  for 
much  helpful  advice  and  encouragement. 
The  study  has  been  made  possible  by  the 
generosity  of  the  founders  of  the  Alice 
Freeman  Palmer  fellowship  given  by  the 
Association  of  Collegiate  Alumnae. 

L.  F.  B. 


CONTENTS 
I 

SOVEREIGNTY  OF  THE  SEAS 

PAQB 

The  Roman  Law , 3 

Medieval  Codes 4 

The  King's  Peace 5 

Papal  Grants 7 

Portuguese  Humanitarianism 8 

Francis  I.  Claims  Freedom  op  the  Seas 9 

But  Makes  Concessions 12 

International  Police 13 

No  Peace  beyond  the  Line 13 

Elizabeth  and  her  Sea  Rovers 14 

Trade  Monopoly 15 

The  Dutch  East  India  Company 16 

Grotius*  Mare  Liherum 17 

Spanish  Concessions  to  the  Dutch 17 

The  British  Seas 18 

Nurseries  of  Seamen 19 

The  Dutch  and  the  Herrinq 19 

The  Dutch  and  the  Whale 20 

Charles  I.'s  Doctrine  op  a  Speaking  Navy 21 

Cromwell's  Navy  Speaks 22 

Dutch  Courtesy 23 

Claims  to  the  Baltic 24 

Christina's  Query 26 

ix 


X  CONTENTS 

II 

TRADE  AND  THE  FLAG 

PAoa 

Colonial  Monopoly 81 

Seeking  Trade  at  the  Cannon's  Mouth 83 

Commercial  Companies 86 

Dutch  Innovations 86 

Treaty  op  1670 88 

Colbert's  Conception  op  International  Relations  ...  89 

The  Dutch  Out  op  the  Race 40 

But  Interested  in  Maritime  Law 42 

Repbisals  and  Privateering 43 

Capture 44 

Convoy 46 

Contraband 46 

Advantages  op  Elasticity 48 

Blockade 49 

Treaties  op  Utrecht 60 

^,  Piracy 51 

The  Asiento 62 

V.  Great  Britain  in  a  Triple  R6le 64 

Dangers  op  Trade  Innovations 55 


HI 

THE  CLOSED  DOOR  AND  THE  OPEN  SEA 

The  Ostend  Company 69 

Juvenile  Indiscretions  op  Gbotius 61 

Policy  and  Patriotism 62 

Hapsburg  Commercial  Dreams  Dispelled 63 

'J'he  Gentle  Art  op  Removing  Rivals 63 

-How  TO  Tell  a  Coast  Guard  from  a  Pirate 65 

Jenkins  and  his  Ear 66 

No  Search,  my  Lords 67 


CONTENTS  xi 

PAGB 

Educating  Public  Opinion 67 

Progress  in  Sea  Law 71 

Treaties  and  International  Law 72 

Free  Flag,  Free  Goods 72 

Frederick  the  Great  and  Sea  Freedom 73 

Spanish  Decadence.    Bernard  db  Ulloa 75 

French  Ambitions.  Deslandes 76 

Dangers  op  a  Neighbor's  Prosperity 76 

Peace  of  Aix-la-Chapelle 77 

Right  op  Search  Ten  Years  After 78 

Seven  Years*  War 78 

Rule  of  1756 79 

Maritime  Union  op  Stockholm 79 

Grievances  op  the  Dane 80 

France  Utilizes  Neutral  Disaffection 80 

Unpopularity  of  Doctors*  Commons 81 

Peace  op  Paris,  1763 82 

How  to  Measure  Gains  from  a  Rival 82 

Tribute  to  England  as  Policeman  op  the  Sea 83 

The  American  Revolution  and  Freedom  op  the  Seas.  84 


IV 
BALANCE  OF  POWER  AND  BALANCE  OF  TRADE 

Choiseul  and  the  Balance  on  the  Sea 87 

France  and  the  American  Revolution 88 

Free  Flag  vs.  Hostile  Contagion 89 

Great  Britain  and  Neutral  Commerce 90 

Vergennes  and  the  Neutral  Powers 91 

The  Baltic  Declared  Mare  Clausum 93 

Courting  Catherine 94 

The  Inquisition  on  the  Seas 95 

The  Armed  Neutrality  of  1780 95 

France  and  Neutral  Right 96 


xii  CONTENTS 

PAOB 

Fredebick*8  Idea  op  a  Tbiumphal  Car 98 

Two  Horns  to  a  Dilemma 09 

Joseph  II.  and  Catherine  a  Committee  on  International 

Law 100 

The  Neutral  Code  Makes  Converts  and  Loses  Adher- 
ents   100 

Freedom  op  the  Seas  Individually  Interpreted 102 

Gloomy  Prognostications  op  Britain's  Decline 103 

A  New  Gospel  dp  Trade 104 

Attempts  to  Live  by  It 105 

The  Treaty  op  Paris 106 

A  Sporting  Proposition , , 107 


TRADE  BARRIERS 

The  Wealth  of  Nations Ill 

Trade  apter  the  War 112 

Pitt  and  the  Navigation  Acts 113 

France  and  the  Closed  Door 115 

America's  Treaty  with  Prussia,  1785 116 

America  and  the  Economic  Weapon 118 

The  Tariff  op  1789 119 

Hamilton's  Report  on  Manufactures 120 

Pitt  and  the  Irish  Problem 121 

The  Treaty  op  1786 122 

France  the  Natural  Enemy. 123 

French  Theory  and  Practice 125 

Revolutionary  Committees 127 

Free  Trade  as  Protection 128 

The  Scheldt  Opened  to  Commerce 130 

England  Goes  to  War 131 

The  French  Sincerely  Flatter  the  English 132 

Individualism  and  Immunity  of  Private  Property 133 


CONTENTS  xiii 
VI 

FRANCE  AND  FREEDOM 

PAOB 

Stranglinq  France 137 

Doctrine  op  Continuous  Voyage 139 

Anglophiles  vs.  Francophiles 140 

The  Jay  Treaty 141 

Strangling  England 142 

Armed  Neutrality  op  1794 143 

Mercantilism  under  the  Directory 144 

Arnould's  Systeme  Maritime 145 

Another  Reading  op  the  Eastern  Question 146 

Freedom  op  the  Seas  a  French  Slogan 147 

Freeing  the  Seas  by  Shackling  Commerce 148 

America  Abandons  the  Principles  op  1780 149 

Armed  Neutrality  op  1800 151 

Liberum  Mare  a  Question  op  Power 152 

Peace  op  Amiens 154 

Napoleon's  Colonial  Dreams 155 

And  Commercial  Devices 156 

Frauds  op  the  Neutral  Flags 156 

The  Essex  Decision 156 

Rule  Britannia  an  Admiralty  Rule 157 

The  Continental  System 158 

Blockade  Tempered  by  License 159 


VII 

INTERNATIONAL  EXPERIMENTS 

Commercial  War  during  War 168 

Impressment 164 

War  op  1812 164 

Necessity  knows  no  Law 166 

Treaty  op  Ghent 167 


xiv  CONTENTS 

PAoa 

Alexander  I.  and  a  League  op  Nations 168 

Congress  op  Vienna 168 

The  Sl.\ve  Trade 169 

Indemnity  for  the  Past  and  Security  fob  the  Future.  169 

Congress  op  Aix-la-Chapelle 171 

Barbary  Pirates 172 

Colonial  Monopoly  Again 173 

Legitimacy  vs.  Profit 174 

Congress  op  Verona 176 

Bering  Sea  Declared  Mart  Clausum 177 

Latin  America 178 

The  Monroe  Doctrine 179 

Sla\^  Trade  and  Right  op  Search 180 

International  Police 182 


VIII 

FREE  TRADE.  FREE  SHIPS,  FREE  GOODS 

Two  French  Viewpoints 187 

Brougham  Attacks  the  Sacred  Navigation  Acts 188 

Another  Sporting  Proposition 189 

Danger  in  a  Short  Voyage 190 

A  Fouled  Anchor 191 

Huskisson's  Reforms 192 

American  use  op  the  Economic  Weapon 193 

Reciprocity 194 

List  vs.  Cobden 195 

England  Adopts  Free  Trade 197 

End  op  the  Navigation  Acts 198 

The  Crimean  War 199 

Neutralization  op  the  Black  Sea 201 

Declaration  op  Paris 202 

Question  of  Privateering 213 


CONTENTS  XV. 

PAas 

The  Danish  Tolls  Abolished 20S 

Immunity  of  Private  Property 204 

Fears  fob  British  Naval  Supremacy 205 


IX 

THE  LAW  OF  THE  SEA  YESTERDAY 

The  United  States  as  a  Belligerent 209 

Doctrine   op   Continuous   Voyage,   as   Seen   by   the 

Supreme  Court 210 

Extension  op  Contraband 211 

Contraband  Commissioners 212 

Bering  Sea  Controversy 213 

Rights  op  Seals  under  International  Law 214 

Spanish-American  War 215 

First  Hague  Conference 216 

Point  of  View  op  the  Naval  Expert 217 

Immunity  op  Private  Property 217 

British  Agitation 218 

Russo-Japanese  War 218 

Second  Hague  Conference 219 

Private  Property  Again 219 

Greek  Gifts 221 

Mine-laying 221 

German  Humanitarianism  Guaranteed 222 

International  Prize  Court 224 

Declaration  op  London 224 

The  Great  War 226 

American  Neutrality 226 

German  Definitions  op  Freedom  op  the  Seas 227 

Task  op  the  Peace  Conference 228 

Question  op  Immunity  To-day 230 

New  Laws  for  Old 231 


xvi  CONTENTS 

X 

THE  LAW  OF  THE  SEA  TOMORROW? 

PAoa 

The  Theobizinq  op  Pbofessors iS5 

PBoriasoRS  should  not  Leave  their  Armchaiks 236 

Freedom  op  the  Seas  as  a  War  Crt ftSQ 

British  Sea  Power 237 

A  League  of  Nations  and  an  International  Police  . .  239 

Internationauzation  of  the  Narrow  Seas 240 

Freedom  of  the  Seas  fob  Commerce 240 

MuTUAUTT  op  Trade 241 

Colonial  Monopoly  and  Its  Lesson 241 

Neo-mercantilism 244 

The  Roots  op  the  War 245 

The  Hope  fob  Freedom  of  the  Seas 240 


THE  FREEDOM  OF  THE  SEAS 


SOVEREIGNTY  OF  THE  SEAS 

•*  Here  begin  the  good  customs  of  the  Sea." 

Consolato  del  Mare. 


**  The  use  of  the  sea  and  air  is  common  to  all;  neither  can  any 
title  to  the  ocean  belong  to  any  people  or  private  man,  forasmuch 
as  neither  nature  nor  regard  of  the  public  use  permitteth  any 
possession  thereof." 

Queen  Elizabeth. 


I 

SOVEREIGNTY  OF  THE  SEAS 

"T  AM  indeed  Lord  of  the  world,  but 
I  the  law  is  lord  of  the  sea."  These 
words  of  the  elder  Antonine,  and 
the  statement  of  the  Roman  law  that  the 
sea  by  the  law  of  nature  is  common  to  all, 
formed  the  bases  for  the  learned  treatises 
of  the  seventeenth  and  eighteenth  centuries 
on  the  Freedom  of  the  Seas.  Reinforced 
by  elaborate  citations  from  classical  poets 
and  Hebrew  prophets,  and  bulwarked  by 
reams  of  argumentation  about  the  law  of 
nature  and  the  law  of  man,  they  presented 
a  formidable  structure.  The  comment  of 
the  modern  reader  is  that  these  authors  pro- 
tested too  much,  for  what  more  obvious  than 

3 


4  THE  FREEDOM  OF  THE  SEAS 

the  truths  thus  elaborated;  that  the  sea, 
being  the  common  highway,  ought  to  be 
open  to  all  mankind,  and  that,  in  order  that 
the  rights  of  none  be  obstructed,  there  must 
be  rules  of  the  road.  Yet  for  centuries 
men  have  been  laboring,  on  the  one  hand 
to  establish  sea  freedom,  on  the  other  to 
frame  such  a  law  of  the  sea  as  shall  main- 
tain its  freedom  at  all  times.  What  prog- 
ress have  those  centuries  seen? 

The  law  of  the  sea  to  which  Antonine 
refen-ed  was  the  Rhodian  law;  in  the 
course  of  the  Middle  Ages  other  codes  de- 
veloped, of  which  the  most  important  were 
the  laws  of  Oleron  and  the  Consolato  del 
Mare,  But  while  the  recognition  of  com- 
mon rights  under  a  law  of  the  sea  was  kept 
alive,  men  came  to  feel  that  continual 
usage  established  rights  over  particular  por- 
tions of  the  sea.  Thus  Venice  claimed  the 
Adriatic,  Genoa  the  Ligurian  Sea,  and  the 
British  kings  the  four  seas  which  bathed 
their  island  dominions.    Indeed,  the  estab- 


SOVEREIGNTY  OF  THE  SEAS  5 

lishment  of  the  British  Admiralty  court,  to 
administer  the  law  in  maritime  affairs,  was 
closely  connected  with  the  idea  of  the  sov- 
ereignty of  the  British  seas ;  the  king's  peace 
must  be  kept  upon  the  king's  seas.  And 
it  will  greatly  help  toward  the  understand- 
ing of  one  of  the  most  difficult  aspects  of 
the  problem  of  freedom  of  the  seas  to-day 
if  the  fact  is  kept  in  mind  that  this  feeling 
of  responsibility  for  administering  the  law 
of  the  sea  without  favor  has  been  a  tradition 
with  Englishmen  for  six  centuries  at  least. 
With  the  development  of  British  sea  power 
the  field  of  responsibility  for  policing  the 
seas  was  extended  until  it  comprehended 
all  the  waters  of  the  globe.  The  tradition 
of  wardenship  of  the  seas  underlies  British 
pre-occupation  with  the  problems  of  com- 
munications and  defense,  and  is  a  strong 
element  in  British  feeling  that  discussion  of 
freedom  of  the  seas  to-day  is  either  academic 
or  Teutonic. 

Yet  enlightenment  on  this  point  lies  in 


6  THE  FREEDOM  OF  THE  SEAS 

the  old  sea  codes  themselves,  in  so  far  as 
they  deal  with  international  relations. 
Piracy,  letters  of  marque  and  reprisal,  dis- 
position of  the  crews  of  captured  vessels, 
distribution  of  prizes,  the  status  of  the  goods 
of  an  enemy  on  the  ship  of  a  friend,  and 
the  goods  of  a  friend  on  the  ship  of  an 
enemy:  these  were  sources  of  bitterness  in 
the  fourteenth  century;  they  were  still  so 
in  the  nineteenth,  and  some  of  the  bitterness 
is  with  us  to-day.  France  and  England 
were  quarreling  over  a  question  of  prize 
jurisdiction  in  1305;  the  matter  was  sub- 
mitted to  arbitration  and  war  broke  out  be- 
fore a  settlement  had  been  reached.  In  1907, 
it  was  decided  that  dissatisfaction  over  the 
decisions  of  national  prize  courts  should  be 
ended  by  the  establishment  of  an  interna- 
tional prize  court.  The  court  never  sat,  be- 
cause no  agreement  could  be  reached  as  to 
what  was  the  law  of  the  sea,  and  before  any 
settlement  was  found  the  present  war 
broke  out. 


SOVEREIGNTY  OF  THE  SEAS  7 

The  struggle  over  sea  sovereignty  began 
later  than  the  controversy  over  sea  law.  It 
dates  from  the  age  of  discovery.  In  1455 
Pope  Nicholas  V  rewarded  the  pertinacity 
of  the  Portuguese  in  exploring  the  African 
coast  by  granting  to  the  crown  of  Portugal 
exclusive  rights  of  navigation,  trading  and 
fishing  in  the  waters  beyond  Capes  Boyador 
and  Non.  The  claims  of  Portugal  in 
those  regions  were  contested  by  Spain,  but 
Nicholas'  successor  confirmed  the  grant,  de- 
fining it  as  reaching  "all  the  way  to  the 
Indians,"  a  phrase  upon  which  Portugal 
later  based  her  claim  to  exclusive  rights  in 
the  Indian  ocean.  When  Columbus,  re- 
turning from  his  first  voyage,  stepped  in 
Portugal,  the  king  stated  that  his  discovery 
apparently  lay  in  Portuguese  seas.  Ac- 
cordingly Ferdinand  and  Isabella  appealed 
to  the  Pope  of  the  hour,  who  was  a  Span- 
iard, and  Alexander  VI  obligingly  issued 
a  series  of  bulls  which  secured  to  them  in 
western  waters  rights  similar  to  those  al- 


8  THE  FREEDOM  OF  THE  SEAS 

ready  granted  to  Portugal  in  the  south  and 
east.  The  demarcation  line  fixed  by  the 
Pope  gave  rise  to  controversy,  but  the  two 
nations  finally  agreed  that  it  should  be  lo- 
cated 370  leagues  west  of  the  Cape  Verde 
Islands,  and  that  it  should  be  regarded  as 
extending  around  the  globe. 

It  was  understood  that  when  the  Span- 
iards sailed  through  Portuguese  waters  to 
reach  their  own  they  must  take  the  most 
direct  route.  Men  of  any  nation  who  braved 
the  terrors  of  excommunication  and  were 
found  in  forbidden  waters  were  to  be  seized 
and  treated  as  "corsairs  and  violators  of 
the  peace."  What  this  was  likely  to  mean 
can  be  judged  by  the  command  of  the 
Portuguese  king  in  the  days  of  his  con- 
troversy with  Spain,  that  offending  vessels 
were  to  be  seized  and  their  crews  thrown 
into  the  sea:  "in  order,"  said  the  monarch, 
with  a  humanitarianism  unknown  to  the 
Consolato  del  mare,  "in  order  that  they  may 
die  a  natural  death." 


SOVEREIGNTY  OF  THE  SEAS  9 

In  ISM,  nearly  a  century  after  the  initia- 
tion of  the  policy  of  papal  partition,  John 
III  of  Portugal,  writing  to  the  Spanish 
ruler,  the  Emperor  Charles  V,  stated  that 
the  European  nations  had  not  objected  to 
the  division  of  the  seas  between  the  two 
countries,  and  that,  with  the  exception  of 
"certain  French  corsairs,"  whose  actions 
their  sovereign  had  disavowed,  they  had 
kept  away  from  those  seas.  The  exception, 
however,  was  an  important  one,  for  al- 
though Francis  I,  the  sovereign  in  question, 
disavowed  the  alleged  trespasses  when  he 
found  it  more  convenient  to  do  so,  on  other 
occasions  he  sustained  them,  and  won  for 
himself  the  reputation  of  being  the  first  sove- 
reign of  modern  times  to  champion  the 
freedom  of  the  seas.  To  the  expostula- 
tions of  the  king  of  Portugal  he  maintained: 
"The  act  of  traffic  and  exchange  of  goods 
is  of  all  rights  one  of  the  most  natural  and 
best  grounded."  To  the  remonstrances  of 
Charles  V  he  responded,  "Is  sending  my 


10         THE  FREEDOM  OF  THE  SEAS 

ships  yonder  a  declaration  of  war  and  a 
breach  of  friendship  with  his  Majesty?  The 
sun  shines  for  me  as  well  as  for  others.  I 
should  like  to  see  the  clause  of  Adam's  will 
which  excludes  me  from  the  partition  of 
the  world!" 

The  deeds  thus  defended  dated  back  to 
the  early  days  of  the  monopoly,  for  French 
corsairs  were  lying  in  wait  for  Columbus 
on  his  return  from  his  third  voyage.  Be- 
fore 1515,  Frenchmen  were  trading  with 
Brazil,  and  French  fishermen  frequented 
the  banks  of  Newfoundland  still  earlier. 
Jean  Ango,  a  wealthy  armateur  of  Dieppe, 
sank  his  enormous  fortune  in  fitting  out 
vessels  which  maintained  the  principle  of 
freedom  of  the  seas  by  voyages  of  discovery^ 
punctuated  by  captures  of  the  rich  cargoes 
of  spices  and  wares  of  the  Orient  brought 
from  the  Indies  by  the  Portuguese,  and 
vessels  laden  with  precious  metals  brought 
from  the  new  world  by  the  Spaniards. 
The  brothers   Parmentier,   Crignon,   Jean 


SOVEREIGNTY  OF  THE  SEAS  11 

Fain,  Verrazano,  were  among  Ango's  cap- 
tains, and  their  exploits  make  a  thrilling 
tale.  As  for  their  status,  it  varied.  In  time 
of  war,  general  letters  of  reprisal  made  them 
free  of  the  enemy's  property  on  the  sea. 
In  time  of  peace,  general  letters  of  reprisal 
were  sometimes  issued  on  account  of  specific 
injury,  as  when  Francis  I  proclaimed  them 
because  his  mariners  had  been  interfered 
with  while  seeking  their  livelihood  on  the 
paths  of  the  sea  which  were  common  to  all. 
In  times  of  peace,  the  genial  custom  pre- 
vailed of  issuing  special  letters  of  reprisal, 
which  permitted  the  recovery  of  the  value 
of  stolen  goods  from  any  compatriot  of  the 
thief  unfortunate  enough  to  cross  the  path 
of  the  aggrieved  person.  In  the  thought  of 
Ango's  men,  when  they  took  a  Spanish  or 
Portuguese  prize,  whether  they  had  letters 
or  not  the  act  was  just  reprisal,  inasmuch 
as  their  comrades,  taken  in  forbidden  waters, 
had  been  treated  as  pirates:  in  the  thought 


12         THE  FREEDOM  OF  THE  SEAS 

of  the  victims,  these  acts  were  piracy  pure 
and  simple. 

It  is  a  well-known  fact  that  Francis  I 
was  capable  of  forgetting  his  principles,  on 
occasion,  in  view  of  advantages  political  or 
other.  In  1531,  he  upheld  the  order  of  his 
admiral,  a  man  of  Portuguese  affiliations, 
not  to  sail  toward  the  Portuguese  colonies, 
but  two  years  later  he  issued  letters  of 
marque  reaffirming  freedom  for  all  to  sail 
the  common  sea.  Portuguese  ports  were 
convenient  points  of  vantage  from  which 
corsairs  could  swoop  down  upon  Spanish 
ships  returning  from  the  West  Indies,  and 
to  which  they  coidd  return  in  triumph, 
bringing  their  prizes  with  them.  In  1536, 
Francis  I  secured  from  Portugal  permission 
to  use  her  ports  in  that  way,  and,  in  acknowl- 
edgment, he  later  ordered  his  ships  to  keep 
away  from  the  regions  claimed  by  Portu- 
gal. This  was  annoying,  especially  to  the 
Frenchmen  who  were  growing  rich  in  the 
Brazil  trade,  and  the  orders,  which  were 


SOVEREIGNTY  OF  THE  SEAS         IS 

twice  repeated  in  successive  years,  were  ap- 
parently honored  chiefly  in  the  breach. 
When  Francis'  shifting  policy  led  him  in 
1545  to  forbid  Frenchmen  to  sail  to  the 
possessions  of  Spain  in  the  Indies,  the  order 
was  no  better  obeyed,  and  Spain  and 
Portugal  were  finally  forced  into  arrange- 
ments for  a  joint  police  of  the  seas.  Francis' 
successor  agreed  that  for  five  years  his  sub- 
jects were  not  without  special  license  from 
Spain  to  sail  or  trade  in  the  Indies,  but  the 
difficulties  of  enforcing  such  pledges  proved 
insurmoimtable,  and  in  1559  a  verbal  agree- 
ment was  made  that  beyond  the  lines  of 
amity  might  would  make  right  and  treaties 
have  no  force.  As  the  lines  of  amity  were 
the  prime  meridian  and  the  Tropic  of 
Cancer,  the  region  given  over  to  the  law  of 
the  stronger  was  an  extensive  one.  The 
policy  thus  inaugurated  long  remained  a 
rule  of  the  sea;  Spaniards  and  Portuguese 
treating  as  pirates  all  foreigners  found  be- 
yond the  Line,  and  French  authorities  ml- 


14         THE  FREEDOM  OF  THE  SEAS 

ing  that  Spanish  and  Portuguese  vessels 
might  be  seized  beyond  the  Line  until  the 
rulers  in  question  should  admit  the  right 
of  the  French  to  trade  freely  in  Indian  and 
American  seas. 

With  the  spread  of  Calvinism,  the  strug- 
gle against  the  Peninsular  monopoly  took 
on  somewhat  of  the  aspect  of  a  religious 
conflict,  but  with  the  development  of  the 
Wars  of  Religion  the  attention  of  the 
French  mariners  was  turned  toward  opera- 
tions against  their  countrymen.  But  the 
mariners  of  England  took  their  place.  The 
motivation  of  the  deeds  of  French  corsairs 
was  simple:  they  were  seeking  wealth,  by 
trade  if  possible,  by  the  simpler  method  of 
seizure  when  opportunity  could  be  found. 
The  motivation  of  the  famous  achievements 
of  the  Elizabethan  sea  dogs  was  the  same; 
in  addition  they  had  the  comforting  con- 
viction, as  had  the  Huguenots,  that  deeds 
done  against  papists  were  services  to  the 
cause  of  righteousness.    It  is  not  necessarj^ 


SOVEREIGNTY  OF  THE  SEAS         15 

to  review  here  the  tremendous  exploits  of 
the  Elizabethans,  who  penetrated  all  the 
seas  of  the  world  and  laid  the  foundations 
of  England's  maritime  greatness,  and  upon 
whose  deeds,  both  sordid  and  splendid, 
Romance  has  set  her  seal.  Elizabeth's 
dictum  that  the  sea  and  the  air  were  com- 
mon to  all  was  as  emphatic  as  that  of 
Francis  I,  and  it  was  more  consistently 
maintained.  She  did,  indeed,  in  1561  com- 
mand her  subjects  to  avoid  Portuguese 
waters,  but  she  made  no  effort  to  enforce 
the  order,  and  she  exercised  the  prerogative 
of  disavowing  the  acts  of  her  subjects  when 
she  chose,  while  never  failing  to  exact  the 
royal  share  of  their  spoil.  The  victories  of 
Drake  in  the  Caribbean  in  1586  meant  the 
death  blow  of  Spain's  hopes  of  barring 
effectually  the  western  seas.  They  did  not, 
however,  affect  Spain's  acknowledged  right 
to  maintain  the  monopoly  of  trade  with  her 
colonies,  nor  did  they  cause  her  to  yield  one 
jot  of  her  claim  of  the  right  to  monopolize 


16         THE  FREEDOM  OF  THE  SEAS 

the  navigation  of  colonial  waters.  France 
and  England  endeavored  to  obtain  trade 
concessions  by  treaty,  but  sedulously 
avoided  committing  themselves  to  any 
agreement  that  might  seem  to  acknowledge 
that  Spain  had  any  right  to  prevent  the 
vessels  of  other  nations  from  sailing  the 
American  seas. 

While  England  was  contesting  Spain's 
monopoly  in  western  waters  a  new  mari- 
time power,  the  United  Netherlands,  was 
breaking  down  that  of  Portugal  in  the  east. 
The  ships  of  the  Dutch  East  India  Com- 
pany won  their  way  against  the  Portuguese, 
and  made  prize  of  their  vessels,  and  in  order 
to  set  at  rest  the  scruples  of  stockholders  who 
hesitated  to  pocket  profits  that  had  not  been 
won  in  peaceful  trade  a  Dutch  lawyer 
named  Grotius  ^vrote  a  learned  treatise  on 
the  law  of  prize.  One  chapter  was  devoted 
to  argimients  proving  that  the  Indian 
Ocean  was  free  to  all  and  that  the  Portu- 
guese claims  there  were  groundless.    When, 


SOVEREIGNTY  OP  THE  SEAS         17 

in  1608,  the  Dutch  were  endeavoring  to 
obtain  the  right  to  trade  with  the  overseas 
dominions  of  Spain,  this  chapter  was  pub- 
lished as  a  separate  work,  under  the  title 
Mar^Lifc^mm,  to  give  strength  to  their  plea. 
Their  effective  argument  was  the  sea  power 
which  they  had  developed  in  the  years  of 
their  contest  with  Spain.  Their  illicit  traf- 
fic with  Spanish  possessions  both  in  the  east 
and  west  had  assumed  tremendous  propor- 
tions during  the  years  of  war,  and  Dutch 
merchants  in  fear  of  losing  these  sources  of 
profit  dreaded  the  return  of  peace.  With 
the  powerful  backing  of  England  and 
France,  they  succeeded  in  obtaining  from 
Spain  in  1609  permission,  in  veiled  terms, 
to  trade  in  the  Indies  in  places  not  actually 
occupied  by  Spain.  The  English  claimed 
to  have  obtained  similar  rights  in  the  treaty 
of  1604,  but  Spain  never  admitted  their  in- 
terpretation of  an  obscure  article  in  that 
document.  The  concession  to  the  Dutch, 
however,  was  made  explicit  in  1648,  and 


18         THE  FREEDOM  OF  THE  SEAS 

constituted  the  first  conceded  breach  in  the 
Spanish  colonial  monopoly. 

Although  the  Mare  Liberum  cannot  be 
supposed  to  have  influenced  the  treaty  of 
1609,  it  had  an  unexpected  eflPect  in  quite 
another  quarter.  The  claim  to  sovereignty 
over  the  British  seas  seems  to  have  been  in 
abeyance  during  the  reign  of  Elizabeth,  but 
the  Stuarts'  conception  of  their  God-given 
powers  led  to  an  unprecedented  extension 
of  that  claim.  The  earlier  monarchs  had 
taken  seriously  the  duties  their  pretensions 
entailed;  it  was  left  for  the  Stuarts  to  think 
of  the  British  Seas  as  a  source  of  honor 
and  profit.  The  first  Stuart  was  cannily 
exercised  over  the  profit;  his  son,  equally 
characteristically,  over  the  honors.  Just 
how  far  the  British  seas  extended,  even  the 
admirals  who  were  supposed  to  defend 
British  authority  there  were  never  able  to 
get  the  Crown  lawyers  to  pronounce  with 
any  exactitude.  Some  learned  jurists 
maintained  that  they  stretched  to  the  Brit- 


SOVEREIGNTY  OF  THE  SEAS  19 

ish  possessions  in  America;  others  were 
satisfied  with  a  western  boundary  line 
drawn  from  Cape  Finisterre  to  Norway. 
Fisheries  were  valued  by  rulers  in  those  days 
partly  as  "nurseries  for  seamen,"  and  James 
I  endeavored  to  force  his  subjects  to  eat 
fish  on  fast  days,  not  as  a  religious  exercise, 
but  to  keep  these  nurseries  thriving.  He 
connected  the  rising  maritime  power  of  the 
Dutch  with  their  great  herring  industry  in 
the  North  Sea,  and  with  his  Scotch  thrift 
he  was  appalled  at  the  thought  of  an  in- 
dustry plied  in  British  waters  swelling  the 
navy  as  well  as  the  coflfers  of  another  na- 
tion. Within  two  months  of  the  publication 
of  the  Mare  Liberum,  the  Dutch  were  noti- 
fied that  they  were  no  longer  to  fish  in 
British  Seas  without  license  from  the  British 
crown.  The  disputes  that  arose  over  this 
prohibition  were  spread  over  many  years, 
and  were  embittered  by  mutual  suspicions. 
The  herring  fisheries  were  a  means  of  live- 
lihood  for   a   substantial   element   of   the 


20         THE  FREEDOM  OF  THE  SEAS 

Dutch  population.  On  the  other  hand,  the 
fear  of  Dutch  rivalry  had  already  assumed 
great  proportions  in  the  British  mind. 
Raleigh  expressed  the  current  feeling  when 
he  declared  that  the  Dutch  "hoped  to  get 
the  whole  trade  and  shipping  of  Christen- 
dom into  their  own  hands,  as  well  for  trans- 
portation, as  otherwise,  for  the  command 
and  mastery  of  the  seas."  Moreover,  the 
quarrel  spread  to  other  waters.  The  British 
claimed  the  right  to  bar  the  Dutch  from  the 
whale  fisheries  in  the  ocean  about  Spitz- 
bergen,  and  for  some  time  two  rival  com- 
panies plied  their  trade  there  under  the 
protection  of  ships  of  war.  Delegation 
after  delegation  of  diplomats  failed  to  ar- 
range the  double  controversy,  which  was 
embittered  by  the  fact  that  the  Dutch  were 
at  the  same  time  driving  English  traders 
away  from  the  Spice  Islands.  The  book 
of  Grotius  had  claimed  the  seas  as  a  free 
highway  for  every  nation,  and  freedom  of 
trade  for  all  nations  on  every  sea,  and  the 


SOVEREIGNTY  OF  THE  SEAS  21 

English  ambassador  at  the  Hague  had  sar- 
castic things  to  say  about  a  nation  that 
claimed  freedom  of  the  seas  in  one  part  of 
the  world  while  denying  freedom  of  trade 
in  another.  The  English  finally  won  admis- 
sion to  the  eastern  trade,  but  the  fisheries 
question  remained,  in  the  parlance  of  the 
day,  a  root  of  bitterness. 

Two  Englishmen,  Welwood  and  Selden, 
wrote  books  to  answer  the  arguments  of 
Grotius  as  to  freedom  of  the  seas.  Selden's 
book,  however,  remained  unpublished  until 
the  reign  of  Charles  I,  when  it  was  by  royal 
order  given  to  the  world  to  vindicate  the 
claims  of  that  monarch.  Not  only  did  he 
follow  his  father's  policy  as  to  the  North 
Sea  fisheries,  but  he  granted  exclusive  fish- 
ing privileges  off  Newfoundland,  forbid- 
ding foreigners  to  fish  there  without  license. 
His  pretensions  were  expressed  for  him  in 
sounding  phrases  by  Coke,  instructing  the 
British  ambassador  in  1635: 

"We  hold  it  a  principle  not  to  be  denied,  that  the 


£2         THE  FREEDOM  OF  THE  SEAS 

King  of  Great  Britain  is  a  monarch  at  land  and  sea 
to  the  full  extent  of  his  dominions,  and  that  it  con- 
cerneth  him  as  much  to  maintain  his  sovereignty  in  all 
the  British  seas  as  within  his  three  kingdoms;  be- 
cause without  that  these  cannot  be  kept  safe,  nor 
he  preserve  his  honour  and  due  respect  with  other 
nations.  But,  commanding  the  seas,  he  may  cause 
his  neighbours  and  all  countries  to  stand  upon  their 
guard  whensoever  he  thinks  fit.  And  this  cannot  be 
doubted,  that  whosoever  will  encroach  upon  him  by 
sea,  will  do  it  by  land  also  when  they  see  their  time. 
To  such  presumption  Mare  Liberum  gave  the  first 
warningpiece,  which  must  be  answered  by  a  defence 
of  Mare  Clausum,  not  so  much  by  discourses  as  by 
the  louder  language  of  a  powerful  navy." 

Recognition  of  these  claims  was  to  be  en- 
forced by  the  salutation  of  English  men- 
of-war  by  all  foreign  vessels  they  met  in  the 
British  Seas.  This  form  of  recognition 
seems  to  have  been  avoided  by  captains  of 
independent  disposition  whenever  they  be- 
lieved they  could  do  so  with  impunity. 
Danes  and  Swedes  are  on  record  as  having 
refused  it,  and  international  incidents  aris- 
ing from  the  refusal  of  French  captains 


SOVEREIGNTY  OF  THE  SEAS  23 

occurred  until  England  relinquished  her 
claim  in  the  Napoleonic  wars.  But  Crom- 
well succeeded,  where  Charles  I  with  all  his 
ship-money  fleets  failed,  and  the  Dutch  in 
the  height  of  their  power  succumbed  to  "the 
louder  language  of  a  powerful  navy." 
After  heroic  struggles  in  the  first  Dutch 
war,  Holland  yielded  the  point  but  not  the 
principle.  In  all  her  treaties  with  Great 
Britain  from  that  time  until  the  Peace  of 
Amiens  in  1802,  occurred  a  clause  by  which 
the  Dutch  bound  themselves,  whenever  a 
Dutch  vessel  met  a  vessel  of  the  British 
navy  in  British  seas,  to  lower  flag  and  top- 
sail. However,  the  Dutch  always  main- 
tained that  it  was  done  as  an  act  of  courtesy, 
not  as  a  recognition  of  British  sovereignty 
over  any  part  of  the  sea.  Dutch  ambas- 
sadors emphasized  the  point  by  offering  to 
salute  in  any  part  of  the  world. 

England  was  not  the  only  power  to  claim 
monopoly  in  the  seas  of  the  north.  The 
Danes  claimed  the  Arctic  seas,  and  pro- 


124         THE  FREEDOM  OF  THE  SEAS 

tested  against  the  voyages  of  British  fish- 
ermen thither  in  1576.  Possessing  both 
Norway  and  Iceland,  Denmark  claimed  the 
right  to  control  the  waters  between,  and 
produced  in  evidence  recognition  of  their 
claim  by  EngUsh  sovereigns.  Elizabeth 
protested  vigorously,  and  British  fishermen 
and  traders  defended  their  rights  there  as 
in  other  seas.  A  claim  less  difficult  of  en- 
forcement was  Denmark's  assumption  of 
the  right  to  sovereignty  over  the  Baltic, 
since  she  was  in  possession  of  the  Straits. 
The  Hanse  towns  throughout  the  period  of 
their  greatness  had  endeavored  to  exclude 
their  trade  rivals  from  the  Baltic,  and  the 
efforts  had  led  to  considerable  friction  with 
the  English  and  the  Dutch.  But  the  Dan- 
ish methods  were  more  effective.  As  early 
as  the  fourteenth  century  Denmark  was 
levying  tolls  on  vessels  passing  the  straits, 
on  the  ground  that  she  kept  those  waters 
free  from  pirates,  and  later  that  she  main- 
tained  lighthouses   to   mark   the   passage. 


SOVEREIGNTY  OF  THE  SEAS  25 

The  varying  amounts  of  these  tolls  caused 
friction  from  time  to  time,  and  during  her 
controversies  Denmark  claimed  '^dominium 
Baltici"  although  whether  the  term  meant 
the  entire  Baltic  or  merely  the  Straits  was  not 
clearly  indicated.  In  1649  the  Dutch,  in 
exchange  for  the  payment  of  a  lump  sum^ 
secured  free  passage  for  their  vessels,  and 
this  transaction  made  these  enterprising 
carriers  the  chief  purveyors  of  naval  stores. 
This  was  unsatisfactory  to  Great  Britain, 
especially  when  the  two  powers  became 
rivals,  and  again  it  was  Cromwell  who  se- 
cured a  satisfactory  adjustment,  although 
it  was  not  without  difficulty.  The  Dutch 
persuaded  the  Danes  to  co-operate  with 
them  in  cutting  off  English  trade  in  the 
Baltic  in  1652,  and  Cromwell  turned  to 
Sweden.  When  Bulstrode  Whitelocke  was 
sent  thither  in  1653  among  the  things  he 
was  instructed  to  secure  was  free  naviga- 
tion through  the  Sound,  not  subject  to  in- 
terference from  Denmark  or  the  Dutch. 


m         THE  FREEDOM  OF  THE  SEAS 

Queen  Christina  herself  paved  the  way  by 
suggesting  that  British  ships  would  be  use- 
ful in  freeing  the  passage  of  the  Sound, 
but  when  Whitelocke  proceeded  to  unfold 
the  English  proposals  she  asked  shrewdly 
"why  the  Baltic  sea  was  named  as  to  free 
navigation,  and  not  other  seas  likewise," 
and  asked  embarrassing  questions  as  to  the 
probable  attitude  of  Cromwell  toward  a 
proposal  for  free  navigation  in  America. 
No  result  came  from  these  negotiations,  but 
the  following  year  Cromwell  arranged  with 
Denmark  for  the  opening  of  the  Sound  to 
English  vessels,  and  finally  deprived  her  of 
her  exclusive  control  by  securing  in  1658 
the  cession  to  Sweden  of  the  lands  on  the 
eastern  side  of  the  Straits. 

Christina's  query  seems  to  have  been 
made  in  the  spirit  of  Grotius'  bitter  remark 
made  many  years  before,  that  "the  action 
of  the  English  is  principally  directed  to  the 
aim  of  having  their  commerce  into  all  na- 
tions free  and  to  deprive  others  of  theirs." 


SOVEREIGNTY  OF  THE  SEAS  27 

It  will  be  necessary  to  estimate  the  truth 
of  this  statement,  since  it  has  already  be- 
come evident  that  in  the  sixteenth  and 
seventeenth  centuries  the  struggle  for  free- 
dom of  the  seas  was  essentially  a  struggle 
for  freedom  of  commerce. 


II 

TRADE  AND  THE  FLAG 


"  Quiconque  est  mabtre  de  la  mer  a  ung  grand  pouvoyr  sur  la 
terre." 

RaxiUy. 


*'  That  what  Nation  soever  can  attaine  to  and  continue  the 
greatest  Trade,  and  number  of  shipping,  will  get  and  keepe  the 
Sovereignty  of  the  Seas,  and  consequently  the  greatest  Dominion 
of  the  World." 

Henry  Robinson. 


II 

TRADE  AND  THE  FLAG 

SPAIN'S  solicitude  in  barring  tres- 
passers from  American  waters  was 
not  due  to  devotion  to  the  abstract 
principle  of  sovereignty.  It  was  eminently 
practical.  She  wished  to  have  no  colonies 
in  the  new  world  which  did  not  owe  allegi- 
ance to  her,  and  she  desired  to  monopolize 
the  trade  with  her  own  colonies.  The 
colonial  trade  was  a  monopoly  of  the  crown, 
closely  guarded  even  from  Spanish  subjects 
unprovided  with  a  royal  license.  The  other 
colonizing  nations  followed  Spain  in  assum- 
ing the  right  to  monopolize  colonial  trade, 
and  in  granting  such  trading  privileges  as 
they  chose.  The  right  to  trade  with  the 
31 


32         THE  FREEDOM  OF  THE  SEAS 

colonies  of  another  nation  came  to  be  re- 
garded as  a  valuable  concession,  and  was 
seldom  yielded  unless  in  a  dictated  peace, 
except  in  exchange  for  something  regarded 
as  equivalent.  Elizabeth  had  contended 
that  existing  treaty  arrangements  permit- 
ting trade  in  the  Spanish  possessions  in- 
cluded the  Indies;  a  claim  the  Spaniards 
would  not  admit.  When  her  successor 
made  peace  with  Spain  in  1604,  he  en- 
deavored to  get  an  expUcit  grant  of  the 
right  to  trade  at  least  in  those  parts  of  the 
Indies  not  actually  occupied  by  Spain,  but 
he  was  obliged  to  content  himself  with  a 
clause  yielding  such  rights  as  had  formerly 
been  granted.  This  Spaniards  and  English- 
men interpreted  as  their  predecessors  had 
done. 

James'  policy  of  keeping  on  good  terms 
with  Spain  prevented  friction  on  this  point, 
but  Charles  was  not  satisfied  with  that  policy 
of  establishing  colonies  in  regions  not  oc- 
cupied by  Spain  which  in  his  father's  time 


TRADE  AND  THE  FLAG  33 

produced  promising  settlements  on  the 
American  mainland.  His  aggressive  policy 
was  typically  expressed  in  his  charter  to 
Warwick,  which  authorized  the  latter  to 
seize  ships,  sack  towns,  and  conquer  terri- 
tory wherever  "the  free  navigation,  trade 
or  commerce  of  any  of  our  subjects  is  or 
shall  be  denied."  These  concessions  resulted 
in  a  few  sporadic  captures  of  Spanish  ves- 
sels, but  again  it  remained  for  Cromwell 
to  accomplish  what  his  predecessor  had 
only  willed.  When  he  expressed  to  the 
Spanish  ambassador  his  desire  that  English- 
men might  be  allowed  liberty  of  conscience 
and  of  trade  in  the  West  Indies,  that  func- 
tionary replied  that  it  was  to  ask  his 
master's  two  eyes.  Instead  of  pressing  a 
request  pronounced  so  excessive,  Cromwell 
fitted  out  a  fleet  and  sent  it  to  those  waters 
to  seize  an  island  suitable  to  be  a  center  for 
English  trade.  This  act  in  a  time  of  peace 
could  not  be  justified  except  by  the  ob- 
solescent doctrine  of  "no  peace  beyond  the 


34         THE  FREEDOM  OF  THE  SEAS 

4 

line,"  and  it  shocked  many  people;  but  the 
island  of  Jamaica,  thus  forcibly  acquired, 
became  a  center  for  British  trade. 

For  British  trade  only,  in  theory,  al- 
though the  despotism  of  monopoly  was  in 
practice  tempered  by  licenses  and  by  much 
illegal  trading:  colonists  usually  realized 
that  freedom  of  trade  was  conducive  to 
prosperity,  and  practiced  it  wherever  pos- 
sible. Colonial  governors  had  the  double 
duty  of  guarding  their  own  monopoly  and 
making  breaches  in  the  monopoly  of  their 
neighbors.  The  modern  device  of  per- 
suading conservative  orientals  to  open  their 
ports  by  means  of  a  naval  demonstration  is 
only  a  milder  form  of  the  policy  expressed 
in  the  commission  issued  in  1662  by  the 
governor  of  Jamaica.  In  it  he  stated  that 
as  the  king  has  instructed  him  to  establish 
trade  with  the  Spanish  islands  near  by  and 
they  refuse  to  allow  it,  a  force  is  to  be  used 
to  attack  Spanish  traders,  and  if  oppor- 
timity  offers,  to  "subdue,  take  and  destroy" 


TRADE  AND  THE  FLAG  35 

Spanish  towns  and  strongholds,  "By  which 
meanes  possibly  other  places  in  the  king  of 
Spaine's  dominions  may  be  better  inclined 
to  receive  the  settlement  of  a  trade  for  his 
Majestie's  subjects/' 

The  best  guarded  monopolies  were  those 
of  the  great  trading  companies,  whose  offi- 
cials were  ever  awatch  for  efforts  either  by 
unprivileged  compatriots  or  by  foreigners 
to  poach  upon  their  preserves.  It  is  well 
known  that  the  rapid  progress  in  coloniza- 
tion made  by  England,  France,  and  the 
Netherlands  was  due  to  the  activities  of  the 
great  companies.  By  companies  the  Dutch 
established  their  trading  posts  in  the  east 
and  the  west;  companies  made  the  first 
permanent  settlements  of  the  Enghsh  in 
America,  and  when  Richelieu  set  out  to  re- 
build the  maritime  power  of  France,  it  was 
by  founding  companies  that  he  laid  his  plans 
for  colonization.  Although  at  first  they 
were  champions  of  freedom  of  the  seas  in 
their  attacks  upon  the  Spanish  and  Portu- 


36         THE  FREEDOM  OF  THE  SEAS 

guese  claims,  and  throughout  the  period  of 
their  power  they  were  aids  to  sea  freedom 
in  the  work  they  did  against  pirates,  they 
became  an  important  obstacle  to  freedom 
in  their  defense  of  their  monopolies.  Some- 
times it  was  against  the  action  of  a  great 
company  that  the  cry  "freedom  of  the 
seas"  was  raised;  sometimes  it  was  the  in- 
fluence of  their  directors,  sitting  in  the  seats 
of  the  mighty  in  the  home  country,  that 
forced  the  issues  of  war  or  peace  according 
to  the  interests  of  the  overseas  trader. 

The  influence  of  the  Dutch  East  and 
West  India  Companies  had  much  to  do  with 
the  success  of  the  treaty  which  made  the 
first  breach  in  the  Spanish  colonial  mon- 
opoly, and  in  the  development  of  the  great 
carrying  trade  which  showed  the  first  two 
Stuarts  that  the  United  Netherlands  bade 
fair  to  become  a  dangerous  rival  on  the  sea. 
The  Dutch,  moreover,  were  given,  as 
Grotius  had  already  demonstrated,  to 
strange  and  disturbing  ideas  of  what  was 


TRADE  AND  THE  FLAG  87 

proper  on  the  sea.  Secretary  Thurloe  made 
notes  of  some  of  these  "new  maximes  and 
principles"  which,  in  1650,  they  were  pro- 
posing to  insert  in  a  treaty  with  Great 
Britain.  The  first  was  "that  there  is  noe 
peculiar  proprietorshipp  of  any  parte  of  the 
sea,  but  it  is  equally  free  to  all  to  saile, 
navigate  and  fish  therein."  He  found  this 
subversive  notion  implicit  in  their  specifica- 
tion for  free  navigation,  commerce,  and 
fishing;  their  assumption  that  they  had 
equal  interests  with  the  British  in  policing 
the  British  seas — ^which  they  carefully 
avoided  calling  by  that  name — and  their 
proposal  to  aid  in  the  task:  sending  out 
fleets,  not  only  against  pirates,  but  against 
all  who  hindered  navigation,  as  "all  exac- 
tions at  sea  are  contra  jus  gentium"  More- 
over, they  suggested  that  they  be  allowed 
freedom  of  trade  with  the  British  colonies, 
and  proposed  revolutionary  changes  in  the 
law  of  the  sea.  Thurloe's  cynical  comment 
was  that  he  did  not  obsen^e  that  they  pro- 


38         THE  FREEDOM  OF  THE  SEAS 

posed  to  open  the  Scheldt  to  commerce,  or 
their  Indian  possessions  to  the  trade  of 
other  nations. 

Against  these  Dutchmen  of  quaint  ideas 
and  increasing  maritime  strength  it  seemed 
desirable  to  take  steps,  and  the  first  step  was 
the  revival  and  extension  of  an  ancient  de- 
vice for  encouraging  national  shipping:  the 
Navigation  Acts.  This  meant  the  erection 
of  a  new  and  formidable  barrier  both  to 
freedom  of  trade  and  freedom  of  the  seas. 
Charles  II  felt  even  more  strongly  than  the 
Commonwealth  men  that  the  Dutch  prob- 
^  lem  was  a  serious  one,  and,  in  preparation 
for  the  struggle,  he  cheerfully  renounced 
the  historic  opposition  of  his  crown  to  the 
Spanish  monopoly;  in  his  treaty  of  1670 
with  Spain  agreeing  with  the  Spanish  ruler 
that  the  subjects  of  one  sovereign  should 
not  navigate  in  the  seas  belonging  to  the 
other  in  the  western  islands,  while  pledging 
that  each  crown  "retain  the  Lordship  of 


TRADE  AND  THE  FLAG  39 

the  Seas,  Straights,  and  fresh  Waters  in 
America,  which  belonged  to  them." 

In  the  genial  enterprise  of  crushing  Dutch 
commerce,  England  had  an  eager  co- 
operator.  France,  freed  from  civil  war, 
was  under  process  of  rehabilitation  at  the 
hands  of  the  great  minister,  Colbert.  One 
aspect  of  his  policy  was  to  make  France 
self-sufBcing,  protecting  home  industries  by- 
heavy  tariffs;  another  was  to  build  up  her 
overseas  trade.  By  this  means,  gold  and 
silver,  the  only  wealth,  according  to  the 
mercantilism  of  which  Colbert  was  an  elo- 
quent exponent,  would  be  made  to  flow  into 
the  country  in  return  for  French  goods. 
Trade  was  to  be  built  up  at  the  expense  of 
English  and  Dutch  commerce,  especially 
the  latter,  as  Colbert  did  not  believe  that 
EngUsh  commerce  was  really  formidable. 
He  considered  the  diminution  of  Dutch 
commerce  to  be  quite  as  important  for 
France  as  the  growth  of  her  own.  For  the 
encouragement  of  the  latter,  chartered  com- 


40         THE  FREEDOM  OF  THE  SEAS 

panics  were  established,  steps  were  taken 
to  intimidate  the  Barbary  pirates,  and  con- 
voys were  offered  merchant  fleets  to  pro- 
tect them  against  "all  other  pirates."  The 
colonial  monopoly  was  enforced  with  great 
strictness.  The  navy  was  greatly  increased, 
and  Louis  XIV  assumed  the  role  of  his 
predecessor  Francis  I,  and  announced  that 
he  proposed  to  estabhsh  freedom  of  navi- 
gation for  his  subjects  in  all  seas. 

Little  by  little,  before  the  attacks  of 
French  and  English,  the  Dutch  were 
obliged  to  give  way,  in  spite  of  the  aid  of 
the  colonists  of  both  opponents,  who  pre- 
ferred unauthorized  freedom  of  trade  to 
being  restricted  to  the  exploiting  mercies  of 
the  mother  country.  The  two  governments 
tried  to  minimize  the  dangers  of  competi- 
tion by  solemn  agreement  not  to  trade  with 
each  other  in  Europe  or  America,  but  such 
agreements  were  hard  to  enforce.  There 
was  a  natural  interdependence  between  the 
different  islands  of  the  West  Indies,  and 


TRADE  AND  THE  FLAG  41 

between  the  islands  and  the  mainland,  that 
no  acts  of  Parliament  or  agreements  signed 
and  sealed  could  conjure  out  of  existence. 
By  the  dawn  of  the  eighteenth  century,  the 
work  of  destruction  was  practically  accom- 
plished; the  Dutch  power  had  become  neg- 
ligible, and  France  and  England  faced  each 
other  as  the  great  rivals  for  colonies  and 
commerce.  On  the  continent  of  Europe, 
they  fought  each  other  for  dynastic  reasons 
and  for  the  balance  of  power,  but  on  the 
other  side  of  the  world  they  fought  for 
colonies  and  commerce:  for  sugar  and 
spices,  for  raw  materials  and  markets. 

It  was  during  the  long  series  of  wars  be- 
tween England  and  France  in  the  eigh- 
teenth and  early  nineteenth  centuries  that 
the  question  of  what  was  to  be  the  recog- 
nized law  of  the  sea  in  time  of  war  became 
an  intensely  embittered  one.  The  position 
of  the  belligerents  on  the  more  important 
points  at  the  beginning  of  the  struggle  can 
perhaps    most    conveniently    be    surveyed 


42         THE  FREEDOM  OF  THE  SEAS 

from  the  point  of  view  of  the  proposed 
Dutch  innovations  of  1650  and  succeeding 
years.  The  Dutch  proposed  that  letters  of 
reprisal  for  injuries  be  abandoned;  that  the 
right  to  search  Dutch  ships  be  no  longer 
asserted;  that  the  flag  should  cover  the 
goods;  that  ships  carrying  contraband 
goods  should  not  be  confiscated;  that  con- 
traband should  be  limited  to  munitions  of 
war,  and  not  made  to  include  money  or  the 
necessities  of  life. 

It  can  be  seen  at  a  glance  that  the  pro- 
posals were  those  of  a  commercial  nation; 
of  a  people  more  concerned  with  their  pros- 
perity when  at  peace  than  with  their  ad- 
vantage when  at  war.  They  were  pro- 
posals which  tended  to  limit  belligerent 
right  and  to  limit  it  decidedly.  Conse- 
quently they  were  proposals  that  would  be 
opposed  by  powers  strong  on  the  sea  and 
advocated  by  powers  either  weak  on  the 
sea,  or,  like  the  Dutch,  powers  likely  to  be 


TRADE  AND  THE  FLAG  43 

neutrals  more  often  than  they  were  bel- 
ligerents. 

In  advocating  the  principle  that  the 
character  of  the  goods  should  be  determined 
by  the  flag;  that  is,  that  enemy  goods  should 
be  free  on  a  neutral  ship,  but  neutral  goods 
be  capturable  on  an  enemy  ship,  the  Dutch 
were  considering  their  own  interests.  They 
were  carriers  and  not  shippers,  and  the  ar- 
rangement would  tend  to  make  both  enemy 
and  neutral  trade  flow  toward  them,  in  a 
war  to  which  they  were  not  a  party,  and 
they  avoided  war  whenever  they  could. 

What  was  the  status  of  the  law  of  the 
sea  in  war  at  the  time  of  the  Dutch  pro- 
posals? Privateering  was  the  cheapest,  the 
most  popular  and  the  most  lucrative  method 
of  carrying  on  war.  It  saved  the  ex- 
pense of  maintaining  a  large  navy,  it  paid 
for  itself,  as  the  crown  took  part  of  the 
spoil  and  the  admiralty  tenths  met  the  ex- 
penses of  adjudication.  It  was  exceedingly 
effective,  as  it  meant  the  destruction  of  the 


44         THE  FREEDOM  OF  THE  SEAS 

enemy's  commerce  and  the  cutting  off  of 
his  supplies.  The  objections  to  the  custom 
are  perhaps  sufficiently  obvious.  To  call 
privateering  legalized  piracy  is  inaccurate 
but  descriptive.  As  a  means  of  acquiring 
wealth  hastily,  it  was  a  most  attractive  oc- 
cupation. It  is,  however,  signilScant  that 
by  1650  the  "best  people"  were  no  longer 
engaging  in  it,  as  they  had  in  the  days  of 
Elizabeth.  The  issue  of  letters  of  reprisal 
in  time  of  peace,  for  the  satisfying  of  private 
wrongs  at  the  expense  of  an  innocent  com- 
patriot of  the  evil-doer,  could  be  defended 
by  none  of  the  arguments  that  were  applied 
to  their  use  for  belligerent  purposes,  and 
the  institution  of  the  reform  proposed  by  the 
Dutch  was  only  a  matter  of  time. 

The  right  of  search  lent  itself  to  many 
abuses.  Disputes  over  it  go  back  to  the 
fifteenth  century,  and  England,  as  the  chief 
maritime  power,  exercised  it  most  fre- 
quently. The  original  reason  for  search  was 
to  ascertain  whether  neutral  vessels  were 


TRADE  AND  THE  FLAG  45 

carrying  contraband  goods,  but  the  British 
also  found  it  a  convenient  method  of  re- 
claiming British  seamen  serving  under 
foreign  colors.  It  was  a  great  inconveni- 
ence to  the  trader,  and  neutrals  tended  to 
demand  that  definite  limits  be  set  on  the 
right,  and  that  the  ship's  papers  be  ac- 
cepted as  proof  of  the  character  of  the  cargo. 

The  energetic  Queen  Christina  of 
Sweden,  infuriated  at  the  searching  of  her 
vessels,  ordered  that  they  travel  under  con- 
voy, and  gave  orders  that  the  convoy  should 
resist  any  search.  The  coming  of  peace 
prevented  friction,  but  the  British  refused 
to  recognize  the  claim  that  a  convoy  ought 
to  protect  vessels  from  search. 

A  still  more  troublesome  question  was 
that  of  the  status  of  neutral  and  enemy 
goods.  Disputes  over  the  usage  go  back  to 
the  fourteenth  century,  when  it  was  some- 
times arranged  by  treaty.  In  1543,  Fran- 
cis I  announced  that  he  meant  to  adhere 
to  the  doctrine  of  hostile  infection.     This 


46         THE  FREEDOM  OF  THE  SEAS 

meant  not  only  the  capture  of  neutral  goods 
on  an  enemy  ship  but  a  neutral  ship  carry- 
ing enemy  goods.  The  English  usage  at 
that  time  seems  to  have  been  the  same,  al- 
though on  one  occasion  it  was  stated  that 
the  rule  was  followed  because  it  was  the 
enemy's  practice.  Both  French  and  Eng- 
lish usage  varied,  but  the  English  came  to 
follow  pretty  consistently  the  rule  of  the 
Consolato  del  Mare,  that  made  enemy  goods 
capturable  on  a  neutral  ship  and  neutral 
goods  free  on  an  enemy  ship.  They  recog- 
nized that  the  flag  covered  the  goods  only 
as  a  treaty  concession. 

Since  the  rule  "free  ship,  free  goods" 
made  exception  of  contraband,  its  value  de- 
pended somewhat  upon  the  definition  of 
contraband.  The  claim  of  a  belligerent  to 
search  neutral  vessels  for  contraband  was 
based  upon  his  claim  to  the  right  to  prevent 
his  enemy  from  receiving  articles  useful  in 
war.  But  what  was  to  be  the  test?  In  one 
of  the   early  Dutch  wars,  the   Spaniards 


TRADE  AND  THE  FLAG  47 

captured  an  English  vessel  laden  with  to- 
bacco and  bound  for  Holland.  Their  plea 
was  that  this  was  contraband,  as  tobacco 
was  an  article  very  useful  and  necessary  for 
an  army,  an  argument  with  which,  judging 
from  the  popularity  of  tobacco  funds,  the 
modem  public  concurs.  In  the  decision  of 
the  court  the  cargo  was  pronounced  truly 
contraband.  The  Dutch  made  a  similar 
claim  years  later  in  the  case  of  a  cargo  of 
wines,  brandy,  salt  and  tobacco.  The  earliest 
English  list  of  contraband  specifies  arms, 
munitions,  foodstuffs,  and  naval  stores. 
Elizabeth  had  many  difficulties  with  the 
question  of  contraband.  Naval  stores  for 
building  the  Spanish  Armada  were  carried 
past  England  in  Hanse  and  Dutch  ships; 
on  Ehzabeth's  denunciation  of  the  practice, 
the  Hanse  threatened  reprisals.  So  much 
difficulty  did  Ehzabeth  have  with  food- 
stuffs that  she  resorted  to  buying  such 
cargoes  instead  of  confiscating  them.  The 
Stuarts  followed  her  practice  occasionally. 


48         THE  FREEDOM  OF  THE  SEAS 

but  after  the  enactment  of  the  Navigation 
Acts  difficulties  arose  about  the  illegality  of 
bringing  such  stores  into  English  ports, 
since  they  were  not  in  EngUsh  bottoms. 
Charles  I  in  his  treaty  with  the  Dutch  in 
1625  included  besides  provisions  and  naval 
stores  gold,  silver,  copper,  iron  and  lead. 

The  usage  of  nations  varied  in  an  in- 
structive way  according  to  circumstances. 
Cromwell,  in  1654,  in  order  to  secure  the 
right  to  trade  with  the  Portuguese  colonies, 
agreed  to  recognize  the  principle  free  flag, 
free  goods.  In  1674,  when  the  Dutch  were 
at  war  with  France,  the  English  as  neutrals 
were  carrying  French  goods  and  dealing  in 
V  naval  stores;  they  made  a  treaty  with  Hol- 
land recognizing  that  free  flag  made  free 
goods,  and  insisted  that  naval  stores  should 
not  be  classed  as  contraband.  In  1704, 
Louis  XIV,  whose  navy  was  still  negligible, 
was  at  war  with  two  naval  powers  and  de- 
pendent on  neutral  favor  for  supplies.  He 
consequently  made  a  bid  for  neutral  sup- 


TRADE  AND  THE  FLAG  49 

port,  issuing  a  statement  of  liberal  policy 
and  declaring:  "The  subjects  of  neutral 
princes  will  recognize  the  care  that  has  been 
taken  to  preserve  for  them  the  same  extent 
and  freedom  of  commerce  that  they  were 
accustomed  to  enjoy  in  time  of  peace,  not- 
withstanding the  restrictions  that  England 
and  Holland,  whose  example  we  might  have 
followed,  have  laid  upon  it." 

Another  source  of  friction  was  the  ficti- 
tious blockade.  As  early  as  the  fourteenth 
century,  cases  were  recorded  of  the  inter- 
diction of  trade  with  the  entire  coast  of  a 
country,  although  the  government  taking 
the  action  had  not  the  means  of  enforcing 
its  prohibition.  Such  action  was  a  great 
source  of  irritation  to  neutrals  whose  peace- 
ful trade  was  interrupted.  One  of  the  most 
famous  cases  in  the  seventeenth  century  was 
that  of  the  blockade  of  the  French  coast 
by  England  and  the  Dutch  in  1689. 
Against  it  Sweden  and  Denmark  made  a 
united  protest  in  1693,  an  action  which  was 


50         THE  FREEDOM  OF  THE  SEAS 

a  precedent  for  similar  unions  in  the  follow- 
ing century. 

The  question  of  the  interruption  of  com- 
merce in  war  had  thus  by  the  dawn  of  the 
eighteenth  century  become  recognized  as  a 
question  of  the  freedom  of  the  seas,  and 
neutral  powers  were  agitating  for  the  limita- 
tion of  belligerent  right.  In  this  respect  as 
well  as  in  others,  the  Treaties  of  Utrecht  in 
1713  marked  an  important  stage  in  the 
controversy.  The  principles  of  maritime 
law  recognized  in  these  treaties  came  to  be 
spoken  of  as  having  become  thereby  a  part 
of  international  law,  as  a  general  European 
settlement  took  place  at  that  time.  This 
was,  of  course,  incorrect,  but  the  existence 
of  the  impression  gave  more  general  cur- 
rency to  the  principles  involved.  The  most 
famous  of  these  was  the  recognition  by 
Great  Britain  of  the  principle  "free  flag, 
free  goods,  and  the  converse,  enemy  ship, 
enemy  goods"  in  her  treaties  with  France, 
Spain,  and  the  Netherlands.     Contraband 


TRADE  AND  THE  FLAG  51 

was  confined  to  enumerated  articles  useful 
in  war,  and  clothing,  foodstuffs,  metals, 
and  naval  stores  were  expressly  excluded. 
The  right  of  visit  was  regulated  and  no  per- 
sons not  belonging  to  the  armed  forces  of  a 
belligerent  were  to  be  removed  from  a 
vessel.  The  ship's  papers  were  to  be  proof 
of  the  contents  of  the  cargo.  On  the  other 
hand,  neutral  goods  on  an  enemy  ship  were 
confiscable,  contrary  to  the  more  liberal 
English  usage.  Provision  was  also  made 
for  the  suppression  of  piracy.  This  was  one 
of  the  crying  evils  of  the  day.  The  heyday 
of  piracy  began  in  the  period  after  the  w^ars 
of  Elizabeth,  when  privateersmen  out  of  a 
job  swarmed  to  the  Mediterranean  and  the 
West  Indies  and  entered  upon  a  career  for 
which  their  previous  training  made  them  not 
unfitted.  The  Mediterranean  was  already 
cursed  by  the  Barbary  pirates,  a  scandal 
which  different  states  dealt  with  spasmod- 
ically. The  solution  lay  either  in  concerted 
action,    or    in    national   treaties,    implying 


52         THE  FREEDOM  OP  THE  SEAS 

tribute  for  immunity.  Unfortunately,  the 
verdict  of  the  European  states  was  for  the 
tribute,  rather  than  for  freedom  by  interna- 
tional action. 

The  Treaties  of  Utrecht  had  also  im- 
portant economic  aspects  bearing  on  our 
theme.  The  further  breaking  down  of  the 
Spanish  colonial  monopoly  was  indicated  by 
the  grant  to  England  of  the  monopoly  of 
the  slave  trade  with  the  Spanish  colonies, 
and  the  right  to  send  one  ship  a  year  to  the 
great  colonial  fair  on  the  Isthmus  of 
Panama.  It  was  also  indicated  by  the  con- 
firmation to  the  Dutch  of  their  trade 
privileges  in  the  West  Indies.  A  step  was 
proposed  toward  the  removal  of  economic 
barriers  between  France  and  England  by 
means  of  a  most-favored  nation  clause. 
But  great  outcry  was  made  in  England  over 
the  proposal  to  admit  French  goods.  The 
useful  argument  that  the  low  prices  due  to 
cheap  French  labor  would  drive  English 
goods  out  of  the  market  and  reduce  the 


TRADE  AND  THE  FLAG  BS 

English  workingman  to  beggary  was  pro- 
duced with  an  effectiveness  only  too  familiar, 
and  that  clause  in  the  treaty  was  not  rati- 
fied. Some  fear  was  felt  in  the  House  of 
Lords  that  trade  could  not  profitably  be 
carried  on  under  the  restrictions  that  hedged 
about  the  permission  to  send  one  ship  a  year 
to  the  Isthmus  of  Panama,  and  merchants 
were  sent  for  to  reassure  their  lordships  on 
that  point.  It  is  well  known  how  British 
ingenuity  provided  means  of  transforming 
that  annual  ship  into  a  pitcher  of  Baucis, 
and  how  Anglo-Saxon  trade  in  the  new 
world,  with  its  accompaniment  of  smug- 
gling, went  merrily  on  its  way  toward  in- 
ternational complications. 

The  Treaties  of  Utrecht  foreshadow  the 
three  changes  that  were  to  be  felt  in  the 
eighteenth  century  struggle  for  freedom  of 
the  seas:  the  effort  to  prevent  the  breaking 
down  of  colonial  monopoly,  the  general 
movement  to  protect  wartime  trade  by 
limiting  belligerent  right,  and  the  spread  of 


54         THE  FREEDOM  OF  THE  SEAS 

new  ideas  concerning  commercial  relations: 
advocacy  of  that  removal  of  economic  bar- 
riers and  establishment  of  equality  of  trade 
conditions  which  has  found  its  most  recent 
formulation  in  one  of  President  Wilson's 
fourteen  points.  Because  of  the  maritime 
strength  and  mercantile  enterprise  of 
Great  Britain,  she  was  to  be  most  prominent 
in  the  first  movement;  since  she  was  in  a 
position  to  be  the  chief  loser  by  curtailment 
of  belligerent  right,  she  was  the  chief  op- 
ponent of  the  second;  she  had  the  honor  of 
naming  among  her  citizens  some  of  the  chief 
defenders  of  the  principles  of  commercial 
freedom.  At  the  same  time  the  predomin- 
ance in  her  government  of  hard-headed 
business  men  who  had  no  patience  with 
theorizers  and  who  had  a  proper  reverence 
for  favorable  balances  of  trade  prevented 
any  extensive  experimentation  with  liberal 
ideas.  The  controversy  between  the  old 
school  of  thinking  and  the  new  in  the  two 
publications,  the  British  Merchant  and  the 


TRADE  AND  THE  FLAG  55 

Mercator,  Defoe's  mouthpiece,  shows  that 
the  British  public  did  have  put  before  it  the 
case  of  letting  down  trade  barriers  and 
establishing  commercial  relations  which 
might  have  prevented  a  century  of  wars  by 
substituting  mutually  beneficial  relations 
for  non-intercourse  and  suspicion.  But  as 
has  been  the  case  so  often  before  and  since 
that  day,  the  arguments  that  seemed  prac- 
tical and  sensible  and  business-like  won  the 
day;  the  English  manufacturer  was  not  ex- 
posed to  the  dangers  of  French  competition, 
and  instead  of  becoming  friends  the  two 
nations  remained  rivals. 


Ill 

THE  CLOSED  DOOR  AND  THE 
OPEN  SEA 


"  Aucune  Nation  ne  peut  s'arrogep  TEmpire  de  la  Mer;  la 
libert6  de  la  navigation  est  etablie,  ainsi  que  celle  du  Commerce, 
sur  la  loi  naturelle.  On  ne  sgauroit  mettre  trop  souvent  sous 
les  yeux  de  toutes  les  Nations  cos  verites  simples,  qui  sont  le 
premier  et  le  principal  fondement  de  leur  repos  &  de  leur  pros- 
perity." 

Accarias  de  Serionne,  1766. 


Ill 

THE  CLOSED  DOOR  AND  THE 
OPEN  SEA 

"    AND   you,   Belgians,   courage,   cour- 
/-%        age!      Continue    to    defend    in- 
trepidly  your   rights    and   your 
freedom,  and  with  them  the  freedom  of  the 
human  race!" 

These  words  were  not  written  in  August, 
1914!.  They  are  taken  from  a  pamphlet 
printed  in  1727,  and  the  struggle  in  which 
the  Belgians  were  urged  to  persist  was  a 
struggle  for  the  freedom  of  the  seas.  Their 
Hapsburg  ruler,  the  Emperor  Charles  VI, 
was  embarked  upon  a  project  which  bade 
fair  to  give  the  Austrian  lands  something 
which  Hapsburgs  have  dreamed  of  from 
59 


60         THE  FREEDOM  OF  THE  SEAS 

tliat  day  to  our  own:  importance  as  a 
maritime  power.  He  had  issued  a  charter 
to  a  group  of  Belgian  merchants  who  were 
already  carrying  on  a  lucrative  trade  with 
the  far  East  from  the  port  of  Ostend.  The 
Dutch  and  the  English  East  India  Com- 
panies, seeing  their  monopolies  endangered, 
complained  to  their  home  governments, 
which  immediately  set  in  motion  machinery 
for  the  suppression  of  the  Ostend  Com- 
pany. Both  governments,  through  their 
representatives  at  the  imperial  court,  ad- 
vised that  the  charter  be  withdrawn.  The 
Dutch  ambassador  claimed  that  it  violated 
treaties  as  well  as  international  law.  The 
Emperor  remarked  that  since  the  sea  was 
open  to  all,  none  could  take  away  from  his 
subjects  the  right  to  sail  upon  it.  The 
English  ambassador  wisely  waived  the  dis- 
cussion of  treaties  based  on  papal  claims 
always  contested  by  England,  and  admitted 
that  the  Emperor  had  a  right  to  send  his 
ships  where  he  chose,  but  intimated  that 


CLOSED  DOOR  AND  THE  OPEN  SEA    61 

there  were  times  when  the  exercise  of  even 
indisputable  rights  was  indiscreet,  and 
hinted  that  the  choice  of  a  North  Sea  port 
was  especially  unfortunate. 

From  requests  the  diplomats  finally 
passed  to  demands,  and  in  the  meantime  a 
flood  of  pamphlets,  in  those  days  of 
limited  newspaper  publicity,  did  what  they 
could  in  the  way  of  the  manufacture  of 
public  opinion.  The  Belgian  pamphlets 
upheld  the  principle  that  "the  right  to 
trade  in  any  part  of  the  globe  is  inherent 
in  all  sovereign  peoples,"  and  asked  the 
Dutch  if  they  were  prepared  to  combat  their 
own  countryman,  Grotius,  and  the  freedom 
of  the  seas  which  he  had  defended,  and  to 
secure  which  they  had  fought  the  Portu- 
guese and  Spaniards.  The  Dutch  consid- 
ered it  unfair  to  judge  Grotius  by  a  work 
of  his  early  youth,  and  felt  sure  that  if  he 
were  still  alive  he  would  condemn  the 
Ostend  Company.  The  English  pamphlets 
ingeniously  combined  the  pocket-book  and 


62         THE  FREEDOM  OF  THE  SEAS 

the  patriotic  appeals.  The  East  India  trade 
in  raw  silk  which  kept  many  idle  hands  in 
England  busy  was  menaced;  the  increase  in 
Belgian  trade  meant  ruinous  competition 
because  of  the  low  prices  made  possible  by 
Belgian  cheap  labor;  Flemish  competition 
had  already  caused  heavy  taxation  to  be 
laid  upon  the  Enghsh  poor;  the  Emperor 
was  aiming  at  universal  dominion,  and  with 
the  increased  maritime  strength  the  com- 
pany would  develop  he  would  be  able  to  lay 
waste  the  English  coasts;  the  Protestant 
religion  would  be  destroyed;  the  Scheldt 
would  be  opened  to  commerce,  and  there 
would  be  an  end  to  the  trade  and  naviga- 
tion of  England  and  Holland,  "without 
which  the  Liberties  of  Europe  can  never  be 
maintained  and  supported." 

Years  later  Pitt  stated  in  Parliament 
that  the  English  government  had  had  no 
right  to  demand  the  suppression  of  the 
Ostend  Company,  and  that  the  act  had 
probably  been  a  mistake,  because  of  political 


CLOSED  DOOR  AND  THE  OPEN  SEA    63 

consequences  involved.  But,  as  the  British 
ambassador  had  said  to  the  Emperor  in 
language  strikingly  reminiscent  of  that  of 
the  Spanish  ambassador  of  Cromwell's  day, 
"In  attacking  our  commerce,  you  fly  in  the 
eyes  of  the  English  nation."  The  matter 
was  not  allowed  to  drop,  and  in  the  com- 
plicated diplomacy  of  five  years,  when  all 
Europe  was  set  by  the  ears  because  of  the 
necessity  of  finding  suitable  wives  for  the 
sons  of  Elizabeth  Farnese,  the  Ostend  Com- 
pany held  its  own,  until  finally,  in  1731,  the 
Emperor  abandoned  his  maritime  ambitions 
in  exchange  for  the  questionable  boon  of 
England's  recognition  of  Maria  Theresa's 
claims  to  the  Hapsburg  lands. 

This  war  against  new  companies  was  not 
confined  to  a  single  instance,  or  to  particular 
nations.  A  generation  earlier  English  and 
Spanish  jealousy  had  sealed  the  fate  of  the 
Scottish  Darien  company,  and  the  Dutch 
made  deliberate  attacks  on  the  Prussian 
African   Company,   which  the   House   of 


64         THE  FREEDOM  OF  THE  SEAS 

HohenzoUern  had  founded  in  1682,  for  the 
"improvement  of  shipping  and  commerce, 
wherein  the  best  prosperity  of  a  country 
consists."  England  and  the  Dutch  again 
co-operated  to  protest,  in  1728,  against  a 
project  for  the  substantial  extension  of  the 
Danish  East  India  Company,  and  the  pro- 
ject was  abandoned,  ostensibly  for  lack  of 
subscriptions.  Protests  were  also  made, 
by  the  Dutch  and  others,  against  the  Span- 
ish establishment  of  the  Guipiscoa  Company 
to  trade  with  the  Philippines,  one  of  the 
arguments  used  being  that  according  to  the 
papal  demarcation  line  the  Spaniards  were 
not  free  to  go  to  the  West  Indies  by  way 
of  the  Cape  of  Good  Hope.  Certain  limits 
were  accordingly  placed  upon  the  opera- 
tions of  the  company. 

Although  protesting  against  Spain's 
venturing  into  Eastern  waters,  the  Dutch 
after  1714  had  co-operated  with  Spain  in 
her  efforts  to  maintain  the  monopoly  of  her 
West  Indian  trade,  feeling  it  an  injury  that 


CLOSED  DOOR  AND  THE  OPEN  SEA    65 

other  nations  should  trade  where  the  Dutch 
alone  had  been  granted  the  privilege.  The 
situation  in  that  region  was  a  troublesome 
one.  The  waters  swarmed  with  pirates,  and 
generally  indistinguishable  from  the  pirates 
were  the  hardy  captains  commissioned  by 
Spain  as  guarda  castas  to  suppress  the 
pirates  and  prevent  illegal  trading.  So 
much  did  English  trade  suffer  that  from 
time  to  time  English  vessels  were  conmiis- 
sioned  to  seize  these  guarda  castas,  but  so 
much  trouble  arose  from  these  warrants  that 
they  were  finally  suspended.  A  British 
officer  sent  to  investigate  the  situation  in 
1731  reported  that  while  villainy  was  "in- 
herent to  that  climate"  and  there  would 
always  be  trouble  there,  the  chief  difficulty 
was  due  to  the  illegal  trade  carried  on  by 
Englishmen,  who  were  to  be  found  in  those 
waters  in  the  proportion  of  fifty  vessels  to 
every  one  of  Spain.  When  it  is  recalled 
that  one  ship  a  year  was  all  the  English 
were  legally  entitled  to  send  to  the  Spanish 


66         THE  FREEDOM  OF  THE  SEAS 

colonies,  it  is  obvious  that  the  Spaniards 
had  reason  for  complaint.  That  the  be- 
havior of  the  guarda  costas  was  offensive  is 
amply  attested  by  Dutch  and  French  com- 
plaints of  their  manner  of  proceeding.  The 
French  government  avoided  complications 
by  ordering  French  captains  to  give  se- 
curity that  they  would  not  trade  in  Spanish 
waters,  but  the  British  traders  had  friends 
in  high  places  who  were  ready  to  champion 
their  interests.  Modern  research  has  estab- 
lished beyond  any  reasonable  doubt  the 
important  fact  that  the  immortal  Jenkins 
did  actually  have  his  ear  sliced  off  by  a 
Spaniard  who  was  searching  his  ship  for 
smuggled  goods,  and  that  the  tale  was  not 
a  fabrication  of  the  Opposition  in  their  de- 
sire to  force  Walpole  into  war.  The  Oppo- 
sition certainly  recognized  the  recruiting 
value  of  the  incident.  "The  tale  of  Jenkins* 
ear  will  raise  us  troops  enough!"  exclaimed 
one  member  on  the  floor  of  the  House  of 
Commons.     Whether  or  no  Jenkins  com- 


CLOSED  DOOR  AND  THE  OPEN  SEA      67 

mended  his  soul  to  God  and  his  cause  to 
his  country,  his  country  embraced  his  cause 
as  that  of  the  freedom  of  British  commerce 
from  search  by  Spaniards  in  time  of  peace 
on  the  American  seas.  A  breath  of  Eliza- 
bethan air  swept  through  Parliament,  as 
the  claim  was  put  forth  that  "no  iiation  can 
have  such  a  property  in  the  open  seas  as 
may  entitle  them  to  interrupt  the  ships  of 
other  nations  in  their  passage  to  and  fro 
upon  those  seas,  about  their  lawful  busi- 
ness." Pulteney,  the  leader  of  the  Oppo- 
sition, represented  that  "no  search,  my 
Lords,  is  a  cry  that  runs  from  the  sailor  to 
the  merchant,  from  the  merchant  to  the 
Parliament,  and  from  Parliament,  my 
Lords,  it  ought  to  reach  the  throne."  Skill- 
ful publicity  made  the  cry  a  popular  one. 
Such  doggerel  as 

"Jenkins*  ear  was  cut  off  clean. 
The  case  is  clear,  the  knife  was  keen." 

caught  the  popular  ear,  and  screeds  from 
sources  more  august  were  soon  forthconi- 


68         THE  FREEDOM  OF  THE  SEAS 

ing.  In  the  course  of  the  negotiations  by 
which  Walpole  hoped  to  secure  a  peaceful 
settlement,  the  cry  changed  to  the  slogan 
"a  free  sea  or  war."  Castilian  pride  could 
not  be  brought  to  disclaim  in  explicit  terms 
what  the  Spanish  government  knew  could 
no  longer  be  maintained  in  fact:  the  sove- 
reignty of  the  American  seas;  and  British 
sentiment  was  impatient  at  references  to 
treaties,  and  to  the  claim  that  British  ships 
ought  to  keep  a  straight  course  between 
England  and  the  English  colonies.  As  one 
of  Horatio  Walpole's  correspondents  put 
it:  "I  would  as  soon  quote  the  authority 
of  Euclid  to  demonstrate  that  two  and  two 
make  four  as  the  terms  of  any  treaty  to 
evince  the  right  of  British  ships  to  a  free 
and  unmolested  passage  through  the  ocean." 
Diplomacy  was  fatally  hampered  by  the 
partisan  zeal  of  the  Opposition  and  by  the 
influence  of  the  merchants  who  would  hear 
of  no  concessions  that  might  hamper  trade. 
They  put  their  trust  not  in  diplomacy,  but 


CLOSED  DOOR  AND  THE  OPEN  SEA      69 

in  the  navy.  As  one  member  of  Parliament 
expressed  it,  the  British  merchant  kept  the 
navy,  and  the  navy  must  defend  his  in- 
terests. 

The  pamphlet  literature  that  the  Ministry 
circulated  for  the  abatement  of  the  war 
fever  supplied  accounts  of  British  atrocities 
to  offset  the  episode  of  Jenkins'  ear;  argued 
that  some  of  the  British  West  Indian  colo- 
nies were  mere  nests  of  pirates;  that  all 
Spain  claimed  was  the  right  to  put  an  end 
to  the  illicit  trade  with  her  colonies;  that 
wars  were  always  injurious  to  a  trading 
nation;  and  that  diplomacy,  if  given  time, 
could  be  depended  upon  to  right  all  wrongs. 
But  these  pleas  were  ineffective  beside  the 
Opposition  literature,  much  of  which  was 
written  by  Pulteney,  Walpole's  bitterest 
opponent.  The  same  ground  was  traversed 
in  the  parliamentary  debates.  The  argu- 
ment that  the  British  claim  to  freedom  of 
the  seas  was  weakened  by  their  pretensions 
in  the  British  seas  was  met  by  the  assertion 


70         THE  FREEDOM  OF  THE  SEAS 

that  whatever  rights  they  possessed  there 
were  acquired  through  the  long  acquiescence 
of  their  neighbors,  and  that  care  must  be 
taken  to  prevent  the  Spaniards  froni  ac- 
quiring by  sufferance  any  similar  rights, 
there  being  much  less  justification  for  dom- 
inance in  the  open  sea  than  in  coastal 
waters.  About  the  right  of  search  there 
was  great  debate.  Chancellor  Hardwicke 
thought  the  British  position  on  this  point 
a  weak  one,  and  proclaimed  his  views  in  a 
famous  debate  when  the  eloquence  of  the 
chauvinists  was  stimulated  by  the  unaccus- 
tomed presence  of  a  group  of  ladies,  who 
had  gained  admittance  by  means  worthy  of 
a  modern  suffrage  delegation.  It  is  worthy 
of  note  that  while  the  popular  casus  belli 
was  the  exercise  of  search  in  time  of  peace, 
the  most  eminent  lawyer  of  the  time  did 
not  support  the  popular  view,  although  it 
accords  with  modern  usage. 

In  the  Commons,  Pitt,  in  a  speech  which 
won  him  a  kiss  from  the  Prince  of  Wales, 


CLOSED  DOOR  AND  THE  OPEN  SEA      71 

attflucked  the  government  with  youthful 
fervor,  deelaxing  that  the  mere  submission 
of  the  question  of  search  to  the  discussion 
of  plenipotentiaries  was  an  indignity.  The 
strongest  argument  of  Spain  was  based 
upon  the  agreement  made  in  the  treaty  of 
1670,  but  those  terms  were  no  longer  agree- 
able to  the  British  public.  However,  if  it 
had  not  been  for  the  powerful  influence  of 
the  stockholders  of  the  South  Sea  Company, 
whose  claims  Spain  refused  to  admit,  Wal- 
pole  would  probably  have  succeeded  in 
averting  the  war  into  which  popular  clamor 
and  party  intrigue  were  urging  him.  It  was 
not  a  glorious  struggle,  and  it  drifted  along 
until  it  merged  into  the  war  of  the  Austrian 
Succession,  without  settling  any  of  the 
points  at  issue. 

The  war  did,  however,  have  its  effect  upon 
maritime  law.  The  English  position  fur- 
nished precedent  for  the  claim  that  the 
right  of  search  was  a  purely  belligerent 
right,    a   contention   eventually   vindicated 


72         THE  FREEDOM  OF  THE  SEAS 

and  later  used  against  England.  During 
the  war,  two  neutral  powers,  France  and 
Denmark,  made  a  convention  with  regard 
to  the  protection  of  their  trade,  and  this 
convention,  which  in  1742  was  amplified 
into  a  treaty,  recognized  the  principle  free 
flag,  free  goods;  regulated  the  right  of 
visit;  limited  contraband  to  articles  useful 
in  war;  and  declared  that  a  blockade  to  be 
binding  must  be  effectually  maintained. 
The  immunity  of  enemy  goods  on  a  neutral 
ship  was  coming  to  be  recognized  in  an  in- 
creasingly large  number  of  treaties.  Be- 
cause of  its  wide  recognition,  its  advocates 
began  to  claim  that  it  was  a  recognized 
principle  of  international  law,  but  the 
British  contended  that  the  old  law  of  the 
sea  held  where  the  new  principle  was  not 
recognized  by  treaty.  They  were  careful  to 
observe  the  principle  with  nations  to  which 
they  had  granted  it,  except  when  hard 
pressed,  and  in  that  case  they  pointed  out 
to  the  aggrieved  party  that  British  Ad- 


CLOSED  DOOR  AND  THE  OPEN  SEA      73 

miralty  courts  could  be  depended  on  to 
award  strict  justice.  With  regard  to  con- 
traband, also,  British  usage  varied.  A  de- 
cision of  the  Admiralty  court  in  1746  was 
that  "provisions  are  and  always  have  been 
esteemed  contraband."  However,  some  of 
the  treaties  excluded  them.  As  to  naval 
stores  Great  Britain  had  no  fixed  policy. 
By  regarding  them  as  contraband  in  a  war 
with  France,  she  could  win  a  distinct  ad- 
vantage, but  it  was  at  the  expense  of  the 
friendship  of  the  northern  powers  and  of 
the  Dutch,  the  chief  producers  and  carriers 
of  those  commodities. 

The  British  position  in  these  matters  was 
well  illustrated  by  the  famous  controversy 
in  1752  with  Frederick  the  Great,  a  ruler 
who  had  no  interest  in  the  extension  of 
belligerent  right,  and  who  on  this  occasion 
won  cheaply  the  reputation  of  champion  of 
freedom  of  the  seas.  Frederick  claimed  to 
have  been  assured  by  a  British  ojBcial  that 
naval  stores  were  not  to  be  regarded  as  con-* 


f 4         THE  FREEDOM  OF  THE  SEAS 

traband,  and  on  the  capture  of  some  of  his 
vessels  he  protested  violently.  A  long  con- 
troversy ensued,  and  Frederick,  having 
used  without  effect  the  plea  that  by  the  law 
of  nations  free  ships  made  free  goods,  re- 
sorted to  an  argument  of  quite  a  different 
kind,  and  stopped  payment  of  the  interest 
on  the  Silesian  loan.  This  line  of  reasoning 
caused  Great  Britain  to  compromise  the 
claim,  but  she  made  no  concessions  as  to  the 
principles  involved.  Indeed,  the  English 
statement  at  this  time  gives  a  convenient 
summary  of  their  position.  They  held  that 
the  property  of  a  belligerent  was  always 
capturable,  but  that  the  property  of  a 
neutral  was  not,  unless  he  had  departed  from 
neutrality,  as  he  did  when  he  tried  to  supply 
the  enemy  with  the  means  of  carrjdng  on 
the  war.  All  ships  were  liable  to  be  stopped 
and  searched  for  contraband,  but  by  par- 
ticular treaty  this  right  might  be  restricted, 
and  in  the  same  way  the  law  of  nations 
might  be  "inverted"  and  the  principle  recog- 


CLOSED  DOOR  AND  THE  OPEN  SEA      75 

nized  that  the  flag  covered  the  goods.  In 
the  British  statement,  the  latter  procedure 
seemed  less  logical  than  the  British,  allow- 
ing as  it  did  the  capture  of  neutral  goods 
in  enemy  ships.  It  was  the  protection  of 
their  own  trade,  and  not  abstract  principles, 
for  which  the  advocates  of  the  newer  prac- 
tice were  working. 

The  war  of  Jenkins'  Ear  marked  a  period 
of  general  belief  in  the  importance  of  mari- 
time strength.  Spain,  already  in  her  de- 
cline, made  no  further  concession  of  her 
ancient  claims;  it  was  even  held  that  her 
chief  reason  for  not  signing  a  proposed 
agreement  with  France,  allowing  the  im- 
portation into  Spain  of  French  colonial 
products,  was  that  to  mention  the  existence 
of  i^Vench  colonies  would  be  a  recognition 
of  the  right  of  France  to  any  possessions 
on  the  Spanish  side  of  the  line  of  demarca- 
tion. There  were  Spaniards  who  believed 
that  Spain  should  put  herself  into  a  position 
to  enforce  her  ancient  claims,  among  them 


76         THE  FREEDOM  OF  THE  SEAS 

Bernard  de  Ulloa,  who  urged  the  building 
up  of  the  Philippine  trade,  partly  because 
the  islands  were  a  valuable  source  of  raw 
materials,  but  chiefly  as  a  stimulus  to  naval 
power. 

It  was  France,  not  Spain,  that  was  to  be 
Britain's  rival  for  the  next  half  century. 
Frenchmen,  too,  were  urging  maritime  de- 
velopment. Maurepas,  the  French  min- 
ister of  marine,  encouraged  Deslandes  to 
write  his  essay  on  maritime  power  and 
commerce,  and  although  through  lack  of 
co-operation  between  departments,  the  book 
was  suppressed  as  soon  as  it  appeared,  it 
was  immediately  reissued,  and  was  straight- 
way translated  by  an  Englishman  as  a 
warning  to  his  countrymen  that  France  was 
waking  up.  Deslandes  based  his  argu- 
ments on  the  success  of  the  English,  "who 
have,  at  present,  the  superiority  of  the  sea, 
the  empire  of  which  they  openly  claim." 
The  strengthening  of  the  French  navy 
under  Maurepas,  and  the  development  of 


CLOSED  DOOR  AND  THE  OPEN  SEA      77 

French  commerce  imder  Fleury,  were 
viewed  with  alarm  across  the  Chamiel. 
England's  participation  in  the  war  of  the 
Austrian  succession  was  due  in  large  part 
to  her  jealousy  of  France's  increasing 
strength  at  sea,  and  in  1748,  when  war 
weariness  sat  upon  the  nation,  the  note  of 
warning  was  sounded  in  Parliament:  Eng- 
land must  not  desert  her  allies  and  leave  the 
French  to  dominate  the  peace  settlement, 
for  "they  would  dictate  such  terms  for  their 
merchants  that  our  merchants  would  have 
no  chance  in  any  market.'*  When  peace 
was  at  last  in  sight  and  the  terms  of  the 
settlement  were  being  discussed,  gloomy 
forebodings  were  heard  that  France  might 
some  time  be  able  to  deal  with  the  Enghsh 
navy  as  Rome  dealt  with  Carthage  after 
the  second  Punic  war,  and  Admiral  Vernon 
assured  his  fellow-citizens  that  France  had 
long  been  aiming  to  be  the  dictator  of 
Europe,  and  that  now  she  was  planning  to 
succeed  through  winning  superiority  at  sea. 


78         THE  FREEDOM  OF  THE  SEAS 

by  means  of  manufacturing,  colonies,  and 
conmierce.  He  declared  that  the  chief 
thought  of  Englishmen  throughout  the  war 
and  in  formulating  the  terms  of  peace,  ought 
to  be  given  to  developing  British  colonies 
and  commerce  and  to  injuring  the  commerce 
and  colonies  of  France. 

The  peace  of  Aix-la-Chapelle,  besides 
closing  the  war  of  the  Austrian  succession, 
was  the  official  end  of  the  war  with  Spain, 
but  nothing  was  said  in  the  treaty  about  the 
right  of  search,  over  which  it  had  been 
fought.  Bitter  comments  on  this  fact  were 
made  in  Parliament,  but  in  ten  years  men's 
views  had  changed,  and  although  there  was 
some  grumbling  about  freedom  of  naviga- 
tion, Pitt  had  come  to  feel  that  the  Spanish 
claims  had  been  reasonable  and  that  the  war 
had  been  a  mistake,  since  it  had  brought 
about  friendly  relations  between  Spain  and 
France. 

In  the  Seven  Years'  war,  the  English 
improved   the    opportunity   to    disappoint 


CLOSED  DOOE  AND  THE  OPEN  SEA      79 

France's  maritime  ambitions.  It  was  in  this 
struggle  that  by  her  imcompromising  use 
of  the  advantages  given  her  by  her  com- 
mand of  the  sea  England  first  evoked 
concerted  protest  from  neutral  powers. 
France,  foreseeing  that  she  would  be  un- 
able to  control  the  trade  with  her  colonies 
during  the  war,  threw  it  open  to  the  Dutch. 
England  thereupon  formulated  the  famous 
Rule  of  1756:  that  "a  neutral  has  no  right 
to  deliver  a  belligerent  from  the  pressure 
of  his  enemy's  hostilities  by  dealing  with  his 
enemies  in  time  of  war  in  a  way  that  was 
prohibited  in  time  of  peace."  Her  general 
policy  was  to  win  the  war  by  cutting  off 
France's  communications  by  sea,  and  in 
protest  against  her  methods  of  executing 
this  policy  two  neutral  countries,  Denmark 
and  Sweden,  formed  the  maritime  union  of 
Stockholm  to  protect  their  commerce,  a 
step  like  the  one  they  had  taken  in  1693. 
Its  chief  value  was  as  a  precedent;  the  con- 
tinued interference  with  Danish  commerce 


80         THE  FREEDOM  OF  THE  SEAS 

is  attested  by  the  correspondence  of  Bern- 
storff,  the  Danish  minister.  He  referred 
bitterly  to  England's  unwillingness  to  allow 
"the  liberty  of  commerce  and  navigation 
due  to  every  free  and  independent  people," 
and  complained  that  she  "after  having  so 
long  and  so  gloriously  fought  for  public 
freedom,  now  fights  only  to  arrogate  to  her- 
self the  despotic  empire  of  the  sea."  Such 
sentiments  were  highly  pleasing  to  the 
French  minister  Choiseul,  who  had  already 
seen  the  possibilities  of  turning  to  advantage 
neutral  irritation  against  England.  He 
took  measures  to  prevent  any  action  on  the 
part  of  French  commanders  that  might  give 
annoyance  to  neutrals,  encouraged  the 
Dutch  to  "sound  the  tocsin  of  the  sea  against 
the  English,"  and  proposed  a  maritime 
league  of  Sweden,  Russia,  Denmark,  and 
the  Dutch.  England  by  timely  concessions 
prevented  Denmark  from  furthering  such 
a  league,  and  pursued  with  little  change  a 
naval  policy  which  meant  such  activity  for 


CLOSED  DOOR  AND  THE  OPEN  SEA      81 

her  privateers  that  the  insurance  against 
them  was  as  high  as  that  against  the  Barbary 
pirates.  The  Ehitch  and  the  Danes  were 
between  the  devil  and  the  deep  sea,  for  the 
French  threatened  that  unless  they  suc- 
ceeded in  getting  the  English  to  recognize 
that  the  flag  covered  the  goods,  English 
goods  on  Dutch  and  Danish  vessels  would 
no  longer  be  respected  by  France,  although 
she  was  by  treaty  pledged  to  let  them  go 
free.  Injured  neutrals  were  bidden  by 
British  authorities  to  expect  restitution  in 
the  courts,  but  there  were  irritating  delays, 
and  Bernstorff  wrote,  in  what  he  admitted 
to  be  some  excitement,  of  "ces  Doctors 
Commons  dont  le  nom  va  descendre  en 
horreur  a  la  posterite,"  an  undeserved  sever- 
ity that  would  surely  have  caused  a  flutter 
among  the  wigs  and  gowns. 

When  the  time  came  for  reaping  the 
fruits  of  victory,  the  bases  of  settlement 
were  colonies  and  commerce,  as  Admiral 
Vernon   had   wanted   them   to   be   in   the 


82         THE  FREEDOM  OF  THE  SEAS 

previous  war.  One  member  of  Parliament 
urged  that  there  was  risk  of  unfavorably 
affecting  public  opinion  if  France  should  be 
deprived  of  all  her  fisheries  in  the  effort  to 
break  her  maritime  strength;  he  feared  a 
hostile  confederacy  might  be  formed  against 
England  if  she  came  to  stand  for  a  mon- 
opoly of  naval  power,  a  system  as  danger- 
ous as  had  been  the  system  of  Louis  XIV 
against  which  they  had  been  fighting.  But 
these  were  not  the  views  of  Pitt.  He  felt 
that  the  granting  of  fishing  privileges  was 
a  grave  mistake,  as  it  would  mean  the  re- 
building of  France's  maritime  power.  For 
the  same  reason  he  strenuously  opposed  the 
return  of  Martinique  and  Guadaloupe,  as 
their  trade  would  help  France's  naval  de- 
velopment, and  all  gain  to  England  in  this 
respect  would  be  fourfold  where  it  meant 
a  loss  to  France.  He  pointed  out  inci- 
dentally that  the  trade  won  by  Great  Bri- 
tain would  more  than  compensate  for  the 
expense  of  the  war.    After  a  long  balancing 


CLOSED  DOOR  AND  THE  OPEN  SEA      83 

of  the  respective  advantages  of  Canada  and 
a  West  Indian  island  or  two,  it  was  finally 
decided  to  retain  Canada,  and  George  III 
little  suspected  that  the  decision,  by  remov- 
ing French  pressure  at  the  north,  was  the 
first  step  toward  the  loss  of  the  colonies  east 
of  that  Mississippi  River  which  he  confused 
with  the  Ganges. 

When,  in  1766,  Franklin  was  examined 
in  Parliament  in  order  to  explain  why  the 
Americans  were  objecting  to  the  sudden 
enforcement  of  the  machinery  of  taxes  and 
restrictions  which  mercantilism  prescribed 
but  which  had  so  long  remained  practically 
a  dead  letter,  he  paid  an  interesting  tribute 
to  Great  Britain's  efficient  performance  of 
police  power.  Americans  felt,  he  said,  "the 
sea  is  yours;  you  maintain,  by  your  fleets, 
the  safety  of  navigation  in  it,  and  keep  it 
clear  of  pirates;  you  may  therefore  have  a 
natural  and  equitable  right  to  some  toll  or 
duty  on  merchandizes  carried  through  that 
part  of  your  dominions,  towards  defraying 


84         THE  FREEDOM  OF  THE  SEAS 

the  expense  you  are  at  in  ships  to  maintain 
the  safety  of  that  carriage." 

How  long  the  Americans  remained  in  the 
mood  thus  politely  described  by  Franklin 
no  modern  American  need  be  told.  The 
new  restrictions  interfered  with  the  profit- 
able but  illicit  trade  with  the  French  which 
was  building  neat  fortunes  for  American 
merchants.  British  merchants  engaged  in 
the  American  trade  found  payments  falling 
off,  and  joined  their  protests  to  those  of 
the  colonials.  In  so  far  as  the  American 
Revolution  was  a  revolt  against  trade  re- 
strictions, it  may  be  regarded  as  part  of  the 
great  struggle  for  freedom  of  the  seas. 


IV 

BALANCE  OF  POWER  AND 
BALANCE  OF  TRADE 

"  The  United  States  of  America  have  propagated  far  and  wide 
in  Europe  the  ideas  of  the  liberty  of  navigation  and  commerce. 
The  powers  of  Europe,  however,  cannot  agree,  as  yet,  in  adopting 
them  in  their  full  extent.  Each  one  desires  to  maintain  the  ex- 
clusive dominion  of  some  particular  sea  or  river,  and  yet  to  enjoy 
the  liberty  of  navigating  all  others.  Great  Britain  wishes  to 
preserve  the  exclusive  dominion  of  the  British  seas,  and,  at  the 
same  time,  to  obtain  of  the  Dutch  a  free  navigation  of  all  the  seas 
in  the  East  Indies.  France  has  contended  for  the  free  use  of 
the  British  and  American  seas;  yet  she  wishes  to  maintain  the 
Turks  in  their  exclusive  dominion  of  the  Black  Sea,  and  the 
Danube  .  .  .  and  of  the  .  .  .  Dardanelles.  Russia  aims  at 
the  free  navigation  of  the  Black  Sea,  the  Danube,  and  the  passage 
by  the  Dardanelles,  yet  she  contends  that  the  nations  which  border 
on  the  Baltic  have  a  right  to  control  the  navigation  of  it.  Den- 
mark claims  the  command  of  the  passage  of  the  sound  .  .  .  France 
and  Spain,  too,  begin  to  talk  of  an  exclusive  dominion  of  the  Medi- 
terranean, and  of  excluding  Russia  from  it.  For  my  own  part,  I 
think  nature  wiser  than  all  the  courts'  and  estates  in  the  world, 
and,  therefore,  I  wish  all  her  seas  and  rivers  upon  the  whole  globe 
free." 

John  Adams,  1783. 


IV 

BALANCE  OF  POWER  AND 
BALANCE  OF  TRADE 

THAT  astute  Frenchman,  Choiseul, 
when  he  heard  the  news  of  the  fall 
of  Quebec,  remarked  that  it  was 
an  ample  subject  for  reflection  by  any  one 
interested  in  the  public  peace  and  welfare 
that  when  Great  Britain  held  the  whole  of 
North  America,  commerce  there  would  be 
precarious  for  other  peoples,  "and  the  bal- 
ance on  the  sea,  on  which  the  balance  on 
land  depends,  will  be  irretrievably  de- 
stroyed." 

The  opportunity  for  redressing  this 
balance  offered  itself  during  the  next  war, 
when  the  military  successes  of  the  Ameri- 

87 


88         THE  FREEDOM  OF  THE  SEAS 

can  colonists  indicated  a  possibility  of  ulti- 
mate victory;  and  the  French  government 
placed  itself  behind  those  of  its  subjects 
who  were  already  fighting  beside  the  Ameri- 
cans from  pure  enthusiasm  for  the  cause 
of  freedom.  It  is  in  the  light  of  Choiseul's 
reflection  that  we  must  interpret  Louis 
XVI's  statement  that  his  only  object  in  the 
war  was  his  attachment  to  the  principle  of 
the  freedom  of  the  seas.  The  formula  was 
a  convenient  one,  and  provided  an  excellent 
argument  for  the  intervention  that  promised 
to  restore  the  prestige  of  the  house  of 
Bourbon.  Vergennes,  Choiseul's  successor, 
used  it  in  persuading  Spain  to  join  the  war. 
"The  ocean  is  no  longer  a  conmion  patri- 
mony: the  English  in  their  pride  are  wield- 
ing over  it  a  universal  dictation  to  which 
they  will  soon  be  pretending  they  have  a 
right  and  title,  since  they  are  now  exercising 
it  in  fact."  With  this  argument  were 
blended  skillful  references  to  opportunities 
for  commerce  after  the  war. 


BALANCE  OF  POWER  AND  TRADE  89 

In  a  war  so  largely  naval,  the  question 
of  belligerent  right  was  bound  to  come  to 
the  fore.  In  her  treaty  with  the  Americans 
France  recognized  the  principle  "free  flag, 
free  goods,"  but  as  both  powers  were  bel- 
ligerents this  did  not  bind  them  in  the 
existing  struggle.  In  June  of  the  same 
year,  France  issued  a  declaration  that  she 
would  seize  not  only  enemy  goods  on  a 
neutral  ship,  but  the  ship  itself,  thus  tran- 
scending Great  Britain's  practice.  A  month 
later  this  was  replaced  by  regulations  that 
provided  that  neutral  trade  was  not  to  be 
interfered  with,  except  in  the  case  of  con- 
traband, or  vessels  bound  for  a  port  where 
a  blockade  was  being  effectually  main- 
tained. These  terms  were  revocable  at  the 
end  of  six  months  if  similar  concessions 
had  not  been  made  by  the  enemy.  A  recent 
writer  has  suggested  that  France's  cham- 
pionship of  "free  ships,  free  goods"  at  this 
time  was  due  to  pressure  brought  by  her 
American  allies;  this  was  probably  a  con- 


90         THE  FREEDOM  OF  THE  SEAS 

tributory  reason,  but  sufficient  explanation 
seems  to  lie  in  the  fact  that  Great  Britain's 
procedure  was  arousing  indignation  among 
neutral  powers,  and  that  this  indignation 
might  be  turned  to  account  if  France  took 
the  opposite  stand.  Certainly  her  efforts  in 
that  direction  were  unceasing  and  not  with- 
out success. 

Great  Britain  had  by  treaty  with  the 
Dutch  recognized  the  immunity  of  enemy 
goods,  not  contraband,  on  neutral  vessels, 
and  excluded  naval  stores  from  the  list  of 
contraband.  Nor  were  they  on  the  contra- 
band lists  in  her  treaties  with  Sweden, 
Denmark,  and  Russia.  To  cut  off  such 
supplies  from  France  became  a  point  of  in- 
creasing importance,  and  many  captures 
were  made  in  contravention  of  treaty  right. 
Englishmen  are  justly  proud  of  the  stand- 
ards maintained  by  the  High  Court  of 
Admiralty,  although  prize  decisions  were 
unfortunately  not  always  above  criticism, 
and  damages  were  in  the  end  duly  paid,  but 


BALANCE  OF  POWER  AND  TRADE     91 

the  aggrieved  powers  were  not  satisfied  to 
await  tardy  compensation  for  their  inter- 
rupted commerce.  At  the  beginning  of  the 
war  England  seized  Dutch  ships  bound  for 
America  on  the  ground  that  treaty  provi- 
sions did  not  apply  to  a  rebelhon.  Later 
she  agreed  not  to  interfere  with  Dutch  com- 
merce except  in  contraband,  but  declared 
that  in  future  contraband  would  include 
naval  stores.  The  Dutch  resorted  to  con- 
voy to  protect  their  trade.  On  the  one 
hand  England  requested  them  not  to  use 
convoy  to  protect  naval  stores ;  on  the  other 
France  threatened  to  withdraw  neutral 
privileges  from  them  if  they  did  not  defend 
their  treaty  rights.  After  a  long  period  of 
attempts  to  run  with  the  hare  and  hunt  with 
the  hounds,  they  concluded  they  had  better 
lose  England's  good-will  than  their  carrying 
trade,  and  convoyed  cargoes  of  naval  stores. 
In  the  meantime,  Vergennes  was  en- 
deavoring to  utilize  neutral  hostility  to 
British  policy.    He  urged  a  common  agree- 


92         THE  FREEDOM  OF  THE  SEAS 

ment  of  France,  Spain  and  the  Dutch  to 
protect  the  freedom  of  their  commerce  and 
navigation.  With  greater  success  he  set  to 
work  to  stir  up  the  northern  powers  to  de- 
fend their  commerce,  and  he  was  aided  in 
this  by  Frederick  the  Great,  one  of  whose 
vessels  had  been  seized  by  the  Enghsh.  He 
began  by  the  threats  he  had  used  with  the 
Dutch,  to  mete  out  to  them  the  treatment 
they  submitted  to  from  Great  Britain.  He 
then  proposed  a  concerted  armament,  such 
as  had  been  employed  to  little  effect  in  1756. 
Catherine  II,  infuriated  by  the  activities 
of  American  privateers,  suggested  to  Den- 
mark a  combined  fleet  to  keep  privateers  out 
of  the  northern  seas.  Denmark  replied 
\vith  a  proposition  for  a  joint  combination 
to  persuade  Great  Britain  to  recognize  the 
principles  adopted  by  the  Franco-Danish 
treaty  of  1742.  But  at  the  moment  the  star 
of  England  was  in  the  ascendant  in  Russia, 
and  Catherine  persisted  in  her  own  plan, 
which  would  have  meant  the  protection  of 


BALANCE  OF  POWER  AND  TRADE  93 

English  as  well  as  neutral  vessels  against 
American  and  French  privateers.  The 
French  representative  in  Russia  objected 
that  the  plan  was  not  consonant  either  with 
the  rules  of  neutrality  or  with  the  principle 
that  the  seas  of  the  world  are  common  to 
all,  upon  which  Catherine  had  acted  when 
she  sent  a  fleet  into  the  Mediterranean.  He 
finally,  with  Frederick's  aid,  persuaded  her 
to  limit  her  plan  to  territorial  waters. 
When  finally  announced,  it  was  backed  by 
Sweden,  and  included  a  proclamation  for 
the  neutralization  of  the  Baltic,  which  laid 
down  the  principle  that  "the  Baltic  was  ex- 
cluded by  natiu-e  from  the  intrusion  of  all 
the  power  of  Europe,  but  such  as  had 
dominions  situated  upon  it."  The  belliger- 
ent powers,  anxious  to  placate  the  neutral 
states  where  it  could  be  done  cheaply, 
eventually  sanctioned  this  arrangement,  al- 
though protest  was  made  in  the  British 
Parliament  against  the  idea  "that  God 
Almighty  intended  that  these  three  powers 


94         THE  FREEDOM  OF  THE  SEAS 
should  govern  exclusively  over  this  vast 


sea. 


For  many  months  the  representatives  of 
France  and  England  labored  with  Cather- 
ine, the  one  to  convert  her  to  the  theory 
of  England's  "tyranny  of  the  seas,"  the 
other  to  prevent  her  conversion.  The  most 
difficult  point  of  doctrine  for  the  latter  to 
defend  was  the  English  extension  of  con- 
traband to  include  naval  stores.  Catherine 
had  wide  ambitions  for  the  future  of  Rus- 
sian commerce,  and  naval  stores  were  its 
staple.  Although  her  ships,  like  her  cities, 
existed  for  the  most  part  on  paper  and  in 
her  imagination,  they  were  to  spring  into 
being,  like  mushrooms,  overnight.  And 
British  policy  provided  no  favorable  soil  for 
a  crop  of  that  sort  of  mushroom. 

Action  was  precipitated  by  Spain,  which 
announced  that  as  England  did  not  respect 
the  immunity  of  the  neutral  flag,  it  would 
no  longer  do  so.  France  earnestly  remon- 
strated  with   her    ally,    representing   that 


BALANCE  OF  POWER  AND  TRADE  95 

"nothing  could  be  more  contrary  to  the 
principle  of  freedom  of  the  seas  than  the 
interception  of  innocent  cargoes."  Ver- 
gennes  was  most  anxious  to  convince  public 
opinion  that  the  war  was  not  a  struggle 
between  monarchs  but  a  contest  for  the 
public  interest  and  for  the  freedom  of  the 
seas.  But  Spain  persisted,  and  seized  a 
Russian  vessel  bound  for  Cadiz.  Russia 
protested  against  what  one  of  her  ministers 
called  the  extension  to  the  seas  of  the  prin- 
ciples of  the  Inquisition.  Then  within  a 
fortnight  Catherine  was  shocked  at  the  news 
that  the  British  had  seized  a  convoyed  Dutch 
fleet,  and  infuriated  at  Spain's  seizure  of 
another  Russian  vessel.  She  wrote  to  her 
friend  Grimm  that  he  might  expect  some- 
thing volcanic.  The  eruption  was  the 
famous  declaration  of  armed  neutrality  of 
1780.  In  it  Catherine  laid  down  as  prin- 
ciples she  intended  to  defend  the  rules  pro- 
posed by  Denmark  some  months  earlier; 
freedom  for  neutrals  to  trade  with  belliger- 


96         THE  FREEDOM  OF  THE  SESS 

ents;  free  ships,  free  goods;  contraband 
limited  to  munitions  of  war,  exclusive  of 
naval  stores;  a  blockade  not  binding  unless 
effectually  maintained.  Behind  this  declara- 
tion was  a  genuine  belief  that  the  right 
moment  had  been  seized  for  establishing 
principles  of  neutral  right  which  would 
prevent  the  interruption  of  commerce  in  a 
maritime  war,  and  would  in  future  prevent 
misunderstandings  in  matters  of  sea  law 
due  to  "ill-defined  words,  different  points  of 
view  and  diverse  appreciations."  The 
modem  reader  thinks  sadly  of  the  Hague 
conferences  and  the  discussions  of  the 
Declaration  of  London. 

There  is  no  reason  for  doubting  the  sin- 
cerity of  Vergennes  when  he  expressed  the 
hope  that  out  of  this  movement  might  come 
a  new  code  of  sea  law  which  would  lessen 
the  frequency  of  wars.  But,  as  he  also 
argued,  France  had  not  enough  sailors  for 
both  a  merchant  marine  and  a  navy^  and 
having  to  depend  on  neutral  carriers  her 


BALANCE  OF  POWER  AND  TRADE  97 

interests  demanded  that  she  champion  the 
limitation  of  belligerent  right.  The  more 
free  was  the  movement  of  neutral  ships,  the 
more  France  profited.  He  used  these  argu- 
ments with  Spain,  and  it  was  French  in- 
fluence which  persuaded  Spain  to  give  up 
its  recent  policy  and  join  the  Armed  Neu- 
trality. On  the  other  hand,  Vergennes 
concluded  that  the  commercial  advantages 
France  might  secure  if  Portugal  did  not 
join  would  be  considerable,  and  he  used  his 
influence,  though  without  success,  to  prevent 
her  giving  her  adherence.  There  has  al- 
ways been  a  tendency  to  question  Cather- 
ine's sincerity  in  the  matter.  It  is  quite  true 
that  as  a  belligerent  she  had  not  observed 
the  principles  of  the  code,  nor  did  she  ob- 
serve them  when  again  a  belligerent  after 
1780.  On  the  other  hand,  in  1786,  she  broke 
off  negotiations  for  a  promising  commercial 
treaty  with  Great  Britain  because  the  latter 
power  would  not  recognize  the  code. 
The  United  States  welcomed  the  move- 


98         THE  FREEDOM  OF  THE  SEAS 

ment  enthusiastically,  and  American  vessels 
were  ordered  to  observe  it;  for  American 
statesmen  approved  the  theory  of  the  new 
code  and  recognized  in  the  armed  neutrality 
a  shrewd  blow  at  Great  Britain.  This  latter 
was  the  general  impression  of  Catherine's 
act.  Frederick  the  Great  said  that  she  was 
entitled  to  have  herself  pictured  as  avenging 
Neptune,  "returning  to  him  the  trident 
which  usurpers  had  torn  from  him,"  and 
"conducting  the  pirates  that  her  wisdom 
knew  how  to  bind  to  her  triumphal  chariot." 
But  the  "usurpers"  and  "pirates,"  though 
aghast  at  the  formidable  movement  headed 
by  Catherine,  had  no  intention  of  being 
bound  to  her  triumphal  car.  Shelburne 
pointed  out  in  the  House  of  Lords  that  the 
new  maritime  code  meant  farewell  forever 
to  the  maritime  power  and  glory  of  Britain, 
as  her  superiority  at  sea  depended  upon  her 
power  of  cutting  oflp  supplies  of  naval  stores 
from  her  enemies.  John  Adams,  never  in- 
clined to  be  over-kindly  toward  England, 


BALANCE  OF  POWER  AND  TRADE  99 

recognized  her  quandary  as  to  blockade.  As 
he  saw  it,  "If  the  king  gives  up  his  interpre- 
tation of  the  word,  there  is  an  end  forever 
of  the  naval  superiority  of  Great  Britain. 
If  he  maintains  it,  it  must  be  by  a  war 
against  all  the  nations  that  use  the  seas." 

Determined  not  to  be  impaled  on  either 
horn  of  the  dilemma  Great  Britain  firmly 
seized  both.  English  diplomacy  busied 
itself  at  neutral  courts,  and  Denmark's  ad- 
herence to  Catherine's  league  was  decidedly 
weakened  by  a  convention  signed  within  the 
fortnight  recognizing  naval  stores  as  con- 
traband. England's  diplomacy  with  Sweden 
had  less  tangible  results,  but  her  declara- 
tion of  war  against  the  Dutch  prevented 
their  profiting  by  their  adherence  to  the 
reformed  principles.  Whether  because  of 
British  diplomacy  or  not,  the  defense  of  the 
Armed  Neutrality  was  not  vigorous  enough 
seriously  to  hamper  England's  prosecution 
of  the  war,  although  its  activities  on  paper 
were  somewhat  extensive.    Joseph  II  and 


100       THE  FREEDOM  OF  THE  SEAS 

Catherine  made  an  agreement  to  work  in 
concert,  at  the  return  of  peace,  to  secure 
the  general  acceptance  of  the  new  code  as 
the  basis  of  international  maritime  law,  and 
the  former  submitted  to  the  empress  his 
"Reflections  on  the  freedom  of  the  seas,"  in 
exchange  for  her  views  on  the  subject.  She 
rejected,  however,  in  her  dislike  of  follow- 
ing the  lead  of  others,  the  proposal  of  the 
king  of  Sweden  that  a  conference  be  held 
at  the  Hague  or  elsewhere  to  draw  up  a 
maritime  code  on  that  basis. 

A  new  British  ministry,  in  1782,  con- 
cluded that  an  alliance  with  Catherine  would 
be  worth  the  sacrifice,  and  twice  notified  her 
that  the  king  was  ready  to  rise  above 
prejudice  and  accede  to  her  maritime  code. 
But  Catherine  would  not  abandon  her  neu- 
trality. A  similar  offer  was  made  to  the 
Dutch,  but  later  withdrawn.  Our  govern- 
ment's application  to  join  the  Armed 
Neutrality  was  rejected  because  of  our  bel- 
ligerent status.    But  as  time  went  on  it  lost 


BALANCE  OF  POWER  ANtt  TISADE;  101: 

its  first  fine  careless  rapture,  and  our 
representatives  at  the  peace  conference  were 
instructed  that,  although  a  recognition  of 
the  new  principles  was  desirable,  they  must 
not  pledge  our  armed  support  to  them. 

A  general  falling  away  of  interest  pre- 
vented any  steps  being  taken  at  the  peace 
conference  toward  agreement  upon  a  mari- 
time code.  Efforts  were  made,  but  they 
were  abortive.  Each  nation  had  its  own 
preoccupations.  The  Armed  Neutrality 
had  secured  for  the  Baltic  powers  the  recog- 
nition of  an  important  claim.  Prussia  and 
Russia  had  joined  Norway  and  Sweden  in 
the  claims  to  control  the  navigation  of  the 
Baltic  which  England  and  the  Dutch  had 
opposed  in  the  first  two  decades  of  the 
century.  The  conventions  of  Russia  with 
Denmark,  Sweden  and  Prussia  for  uphold- 
ing the  Armed  Neutrality  included  six 
additional  articles  declaring  the  Baltic  free 
for  commerce  but  closed  to  ships  of  war. 
England,  although  objections  were  raised 


102      *  THE  FREEDOM  OF  THE  SEAS 

against  recognizing  this  claim  to  exclusive 
rights,  judged  it  discreet  to  do  so.  France, 
with  a  certain  logic  regarding  freedom  from 
warlike  operations  as  freedom  of  the  seas, 
expressed  her  adherence  to  the  claim  ex- 
plicitly as  a  special  sign  of  friendhness 
to  the  powers  that  were  comporting  them- 
selves as  the  protectors  of  freedom  of  the 
seas.  Thus  freedom  of  the  seas  became  a 
matter  of  individual  interpretation,  and  as 
John  Adams,  who  regarded  freedom  as  an 
American  invention,  shrewdly  observed  at 
the  time  of  the  peace  conference,  each  nation 
had  its  special  seas  or  streams  from  which 
it  wished  the  right  to  exclude  the  others, 
but  desired  to  have  all  other  waterways  on 
the  globe  entirely  free.* 

This  spirit  of  nationalistic  exclusivism 
was  the  spirit  that  dominated  the  debates 
in  the  British  Parliament  that  marked  the 
closing  period  of  the  war.  That  the  real 
object  in  dispute  was  the  empire  of  the 

*  The  passage  is  quoted  at  the  head  of  this  chapter. 


BALANCE  OF  POWER  AND  TRADE  lOS 

seas;  that  the  loss  of  the  continental  colonies 
would  be  followed  by  their  conquest  of  the 
West  Indies;  that  the  Americans  would 
create  a  navy  which,  with  France's  aid, 
could  drive  the  British  from  the  seas;  that 
this  would  mean  the  loss  of  India  and  the 
confining  of  British  enterprise  to  the  Brit- 
ish isles — these  were  the  asseverations  of 
prominent  statesmen.  The  chief  aim  of 
Englishmen  therefore  ought  to  be  the  de- 
struction of  French  maritime  strength;  in- 
deed, Sheridan  feared  that  if  peace  were 
made  while  the  House  of  Boujbon  was 
equal  in  maritime  force  to  Great  Britain, 
it  would  be  the  end  not  only  of  the  com- 
merce and  prosperity,  but  of  the  civil  liber- 
ties of  Great  Britain. 

Yet  some  of  the  leaders  of  thought  in 
England,  as  well  as  in  France  and  in 
America,  prophesied  differently.  Diderot 
in  his  Encyclopedia  had  expressed  the  belief 
that  the  world  had  reached  the  point  where 
internationalism  was  a  genuine  force;  where 


104       THE  FREEDOM  OF  THE  SEAS 

nations  could  never  again  be  worked  up  into 
frenzies  of  hatred  for  one  another:  that 
since  commerce  had  established  bonds  be- 
tween all  peoples,  making  the  inhabitants 
of  one  country  dependent  upon  those  of 
others  for  the  products  of  their  toil,  the 
welfare  of  each  nation  was  bound  up  with 
that  of  all  others,  and  that  the  prosperity 
of  every  country  was  to  be  desired  by  all 
the  rest.  These  were  not  the  rosy  dreams 
of  a  single  idealist;  they  were  a  part  of  the 
attacks  made  upon  mercantilism  by  the 
physiocrats  in  France,  in  England  by  Child, 
Dean  Tucker  and  Hume,  and  given  widest 
currency  in  the  work  of  Adam  Smith. 
They  seemed  so  reasonable  that  certain 
statesmen  set  out  to  act  upon  them.  Shel- 
burne  and  the  younger  Pitt  in  England; 
Adams,  Franklin  and  Jefferson  in  America, 
and  Vergennes  in  France,  were  all  believers 
in  the  mutuality  of  trade  and  the  interde- 
pendence of  trading  nations;  they  followed 
Adam  Smith  in  the  belief  that  the  elaborate 


BALANCE  OF  POWER  AND  TRADE  105 

system  of  laws  and  restrictions  with  which 
the  trade  of  nations  was  burdened  were 
hindrances  and  not  helps  to  prosperity  and 
development.  In  their  efforts  they  were 
confronted  by  the  massed  forces  of  con- 
servatism, by  satisfaction  with  the  status 
quo,  by  the  suspicion  that  successful  busi- 
ness men  of  all  ages  have  of  "theorizers" 
and  "idealists."  The  new  ideas  above  all 
had  to  make  way  against  the  dogged  de- 
termination of  individuals  and  groups  to 
protect  their  interests  at  all  hazards,  and  to 
let  no  notions  of  universal  brotherhood  or 
international  good-will,  or  any  theories  of 
trade  that  savored  of  such  impracticalities, 
bring  risk  of  alteration  to  favorable  balances 
of  pounds,  shillings,  and  pence. 

The  struggle  was  begun  in  the  negotia- 
tions for  the  peace  which  closed  the  Ameri- 
can war.  Oswald,  whom  Shelburne  sent  to 
Paris,  was  a  disciple  of  Adam  Smith; 
Franklin  had  long  been  a  convert  to  free- 
dom of  trade,  and  Jay  and  Adams  held 


106       THE  FREEDOM  OF  THE  SEAS 

similar  views.  Gerard  de  Rayneval,  whom 
Vergennes  sent  to  London  as  special  repre- 
sentative, and  who  was  later  to  write  a 
treatise  on  freedom  of  the  seas,  agreed  with 
Shelburne  that  commercial  monopoly  was 
an  "odious  invention."  These  men  believed 
that  absence  of  barriers  to  commercial  in- 
tercourse was  quite  as  important  as  satisfac- 
tory territorial  arrangements,  and  they  were 
ready  to  go  farther  than  their  governments 
would  follow.  A  provision  for  direct  com- 
merce between  America  and  the  British 
dominions  was  expunged  by  the  Cabinet  as 
impossible  under  the  Navigation  Acts.  But 
as  Shelburne  pointed  out  in  Parliament,  the 
cession  of  Senegal  by  France  meant  a 
breach  in  the  monopoly  of  the  gum  trade, 
and  the  English  cession  of  the  Canadian 
hinterland  meant  giving  up  a  monopoly  of 
the  fur  trade  which  England  had  maintained 
at  vast  expense  and  which  had  profited  a 
few  merchants  only.  Freedom  of  naviga- 
tion on  the  Mississippi  was  to  be  secured. 


BALANCE  OF  POWER  AND  TRADE  107 

and  the  Americans  kept  the  right  to  fish  off 
Newfoundland.  They  based  their  claim  to 
the  fisheries  on  the  principle  that  "the  sea 
cannot  in  its  nature  be  appropriated;  no 
nation  can  put  its  mark  on  it."  It  was  the 
vigilance  of  Adams  that  secured  the  recog- 
nition as  a  right  and  not  as  a  liberty. 

Shelburne  believed  that  a  treaty  of  peace 
was  satisfactory  in  proportion  as  it  recog- 
nized the  principle  of  freedom  of  trade,  and 
defended  the  treaties  vigorously  on  that 
ground.  He  maintained  that  England 
might  well  make  further  extensions  of  the 
principle ;  that  with  its  favorable  geographic 
position,  its  capital,  and  its  enterprise,  it 
ought  to  say:  "Let  every  market  be  open, 
let  us  meet  our  rivals  fairly,  and  we  ask  no 
more." 

With  this  proposal,  worthy  of  a  nation  of 
sportsmen,  the  English  ministry  closed  a 
struggle  which  had  begun  as  a  protest 
against  English  mercantile  exclusiveness, 
and  had  been  carried  on  in  a  spirit  of  eager- 


108       THE  FREEDOM  OF  THE  SEAS 

ness  to  destroy  the  power  of  England's 
great  commercial  rival.  The  omen  seemed 
good.  Across  the  ocean  was  a  new  nation 
which  had  come  into  existence  in  vindication 
of  freedom  of  commerce.  Across  the  Chan- 
nel lay  France,  which  had  fought  the  war 
as  the  champion  of  freedom  of  the  seas. 
What  prospect  could  be  fairer? 


TRADE  BARRIERS 


**  In  general,  I  would  only  observe  that  commerce,  consisting 
in  a  mutual  exchange  of  the  necessaries  of  life,  the  more  free  and 
unrestrained  it  is  the  more  it  flourishes,  and  the  happier  are  all 
the  nations  concerned  in  it.  Most  of  the  restraints  put  upon  it  in 
different  countries  seem  to  have  been  the  projects  of  particulars 
for  their  private  interest,  under  pretence  of  public  good." 

Benjamin  Franklin, 


TRADE  BARRIERS 

ADAM  SMITH  published  the 
Wealth  of  Nations  in  1776.  It 
completely  exposed  the  fallacies 
of  the  old  system  of  colonial  monopoly  and 
restriction,  and  constituted  a  mine  of  argu- 
ments for  freedom  of  commercial  inter- 
course that  has  been  worked  industriously 
from  that  day  to  this.  But  Adam  Smith 
was  not  a  wild-eyed  reformer,  and  he  in- 
cluded in  his  treatise  two  statements  which 
greatly  comforted  the  type  of  mind  that 
goes  in  fear  of  freedom.  He  approved  the 
navigation  acts,  restrictive  though  they 
were,  as  measures  conducing  to  national  se- 
curity, and  he  conceded  that  tariffs,  although 
111 


112       THE  FREEDOM  OF  THE  SEAS 

commercially  undesirable,  as  were  naviga- 
tion acts,  might  be  useful  as  an  economic 
weapon  for  retaliatory  or  bargaining  pur- 
poses. These  concessions  to  political  ex- 
pediency proved  very  useful  in  stemming 
the  tide  of  economic  freedom,  and  in 
England,  France  and  America  helped  pre- 
vent the  full  success  of  the  movement  for 
freedom  of  commerce  which  would  have 
meant  freedom  of  the  seas. 

It  had  been  the  expectation  of  French- 
men that  after  the  Revolution  Americans 
would  refuse  to  trade  with  their  late  ene- 
mies, and  that  their  French  allies  would  fall 
heir  to  this  lucrative  commerce.  This  was 
not  the  case.  Even  before  peace  was  made. 
Frenchmen  complained  that  Americans 
were  trading  with  the  British,  a  complaint 
which  Gouverneur  Morris  neatly  answered 
by  saying  that  the  French  had  only  them- 
selves to  blame,  for  by  championing  the 
principles  of  the  Armed  Neutrality  they 
had  given  the  British  the  opportunity  to 


TRADE  BARRIERS  US 

send  their  goods  in  safety  to  the  new  world, 
and  that  as  men  will  always  buy  in  the 
cheapest  market,  regardless  of  political 
affiliations,  the  Americans  were  buying  those 
goods. 

The  colonists  were  used  to  British  goods, 
and  looked  forward  eagerly  to  the  re- 
establishment  of  pre-war  conditions.  More- 
over American  merchants  anticipated,  as 
one  of  the  blessings  of  peace,  resumption  of 
undisturbed  traffic  with  the  British  West 
Indies.  It  was  a  rude  shock  when  they 
found  themselves,  as  aliens,  barred  by  the 
Navigation  Acts  from  the  trade  which  as 
British  subjects  they  had  enjoyed  without 
question. 

The  Americans  had  a  powerful  advocate 
in  England.  Popular  prejudice  against 
the  hberal  ideas  of  the  treaties  of  1783  had 
led  to  the  fall  of  Shelburne's  ministry,  but 
Pitt  also  was  a  firm  believer  in  the  freedom 
of  trade.  Hoping  to  retain  the  bulk  of  their 
custom  by  cultivating  their  good-will,  he 


114       THE  FREEDOM  OF  THE  SEAS 

drafted  a  bill  for  commercial  relations 
which  would  have  put  Americans  on  the 
same  footing  as  British  subjects  both  as  to 
trade  with  England  and  with  the  West 
Indies.  The  West  Indian  colonists  and  the 
merchants  trading  with  America  favored 
the  bill,  but  the  shipping  interests  were 
violently  opposed  to  it.  It  was  attacked  as 
meaning  a  total  revolution  in  British 
colonial  policy  which  might  wreck  the  entire 
structure  of  British  trade.  The  Navigation 
Acts  had  given  Great  Britain  the  trade  of 
the  world,  and  if  they  were  altered  to  allow 
any  nation  to  bring  into  England  any  goods 
not  of  its  own  production,  or  to  permit  any 
nation  to  trade  with  the  British  colonies,  the 
marine  of  England  would  be  lost. 

So  strong  was  the  opposition  to  the  bill 
that  Pitt  withdrew  it,  and  the  victory  of 
restrictionist  policy  was  voiced  in  the  Order 
in  Council  of  1783,  which  limited  the  trade 
between  the  United  States  and  the  West 
Indies  to  a  few  articles,  carried  in  British- 


TRADE  BARRIERS  115 

manned  and  British-owned  vessels;  a  mea- 
sure that  was  received  with  indignation  by 
the  West  Indian  planters  as  well  as  by 
Americans.  France  also  allowed  only  re- 
stricted relations  between  her  West  Indian 
possessions  and  her  late  ally.  On  being 
rallied  by  Adams  for  adopting  the  princi- 
ples of  the  English  Navigation  Acts,  the 
French  ministers  disclosed  that  they  fol- 
lowed Adam  Smith  in  the  advocacy  of 
restrictions  intended  to  provide  nurseries 
for  seamen  and  to  increase  the  national 
strength  by  the  creation  of  a  strong  mer- 
chant marine.  Not  only  was  it  evident  that 
they  intended  to  continue  their  restrictive 
policy,  but  there  were  indications  that  they 
would  endeavor  to  influence  the  Dutch  and 
the  Danes  in  the  same  direction. 

What  course  should  the  United  States 
adopt?  Her  tone  had  been  that  expressed 
by  Patrick  Henry:  "Fetter  not  our  com- 
merce. Sir;  let  her  be  as  free  as  air!"  John 
Adams  had  declared  that  the  Americans 


116       THE  FREEDOM  OF  THE  SEAS 

"aspire  after  a  free  trade  with  all  the  com- 
mercial world."  Franklin  said:  "It  is 
possibly  an  erroneous  opinion,  but  I  find 
myself  rather  inclined  to  adopt  that  modem 
one,  which  supposes  it  best  for  every  coun- 
try to  leave  its  trade  entirely  free  from  all 
encumbrances."  Franklin  and  Adams  ap- 
parently had  been  the  most  active  members 
of  the  committee  of  the  Continental  Con- 
gress which  in  1776  had  drawn  up  a  draft 
treaty  to  be  used  as  a  basis  for  treaties,  and 
their  draft  embodied  the  ideas  of  eighteenth 
century  liberalism,  in  the  maritime  provisions 
favorable  to  neutral  right,  and  commercial 
provisions  providing  for  reciprocity  instead 
of  bargains  and  concessions.  The  treaty  with 
France  in  1778  followed  this  draft  closely, 
as  did  the  treaty  with  the  Netherlands  in 
1782  and  that  with  Sweden  in  1783.  Fred- 
erick the  Great  was  very  anxious  to  secure 
the  American  market  for  Prussian  goods, 
and  in  1785  signed  the  famous  treaty  in 
which  Franklin  had  secured  the  insertion  of 


TRADE  BARRIERS  117 

a  proposal  which  he  had  urged  in  vain  upon 
the  British  commissioners  for  the  treaty  of 
1783;  a  provision  securing  the  immunity  of 
all  peaceful  commerce  in  time  of  war.  Con- 
traband was  limited  to  arms,  munitions  and 
military  stores,  and  contraband  goods  while 
they  could  be  requisitioned  could  not  be 
confiscated.  Neither  the  treaty  of  1778 
with  France  nor  that  of  1785  with  Prussia 
coupled  with  free  ships,  free  goods  the  op- 
posite principle,  recognized  at  Utrecht,  of 
enemy  ships,  enemy  goods,  but  it  was  in- 
cluded in  the  treaties  with  the  Dutch  and 
with  Sweden. 

Great  Britain,  finding  that  the  American 
trade  was  coming  to  her  under  the  existing 
situation,  refused  to  make  a  commercial 
treaty.  As  a  result  of  disappointing  expe- 
rience, a  change  came  over  the  spirit  of  the 
dreams  of  American  statesmen,  and  they 
reluctantly  came  to  the  conclusion  that  as 
the  new  ideas  were  progressing  so  slowly, 
it  might  be  necessary  to  gain  concessions 


118       THE  FREEDOM  OF  THE  SEAS 

by  threat  of  reprisal.  Adams  professed  our 
willingness  to  throw  open  all  our  ports 
unrestrictedly  to  Great  Britain;  "but  the 
United  States  must  repel  monopolies  by 
monopolies  and  answer  prohibitions  by  pro- 
hibitions." Madison  declared  his  preference 
for  perfect  freedom  of  trade,  "but  before 
such  a  system  will  be  eligible,  perhaps,  for 
the  United  States,  they  must  be  out  of  debt ; 
before  it  will  be  attainable,  all  others  must 
concur  in  it."  Even  the  ardent  Jefferson 
said  resignedly:  "I  suppose  we  may  be 
obliged  to  adopt  a  system  which  may  shackle 
them  in  our  ports,  as  they  do  us  in  theirs." 
The  system  was  already  in  the  making. 
The  various  states,  beginning  w^ith  low 
tariffs  for  revenue,  were  replacing  them  by 
protective  and  prohibitory  tariffs,  and  the 
necessity  of  having  a  unified  commercial 
policy,  if  any  concessions  whatever  were  to 
be  obtained  from  foreign  nations,  were  de- 
termining factors  in  the  movement  which 
resulted  in  the  adoption  of  the  federal  con- 


TRADE  BARRIERS  119 

stitution.  The  necessity  of  a  revenue,  and 
the  desire  for  an  economic  weapon,  led  even 
the  advocates  of  unrestricted  trade  to  conciu* 
in  the  movement  for  a  tariff.  A  representa- 
tive from  Pennsylvania  obligingly  offered 
as  a  substitute  for  Madison's  modest  tariff 
for  revenue,  one  framed  with  an  eye  on 
Pennsylvania's  infant  industries.  For  the 
next  seven  weeks,  Congress  wore  a  highly 
modern  air.  The  interests  of  the  various 
sections  were  considered  with  as  much  ten- 
derness as  conflicting  interests  allowed,  and 
although  the  resulting  duties  seem  ridicu- 
lously low  to  the  eye  trained  to  look  with- 
out flinching  upon  a  modern  tariff  schedule, 
the  first  step  had  been  taken,  and  the  nation 
is  still  paying  the  costs. 

Madison  argued  in  favor  of  discriminat- 
ing tonnage  duties  as  a  means  of  building 
up  a  navy  which  might  "prevent  the  horrors 
of  war,"  and  also  as  an  economic  weapon 
to  secure  concessions;  since  the  prospect  of 
Great  Britain's  relaxing  her  navigation  laws 


120       THE  FREEDOM  OF  THE  SEAS 

was  negligible.  The  result  was  legislation 
copied  after  the  principle  of  the  British 
laws,  laying  diflPerential  duties  on  American 
and  foreign  tonnage,  and  allowing  a  reduc- 
tion of  duty  on  goods  imported  in  American 
vessels. 

The  theoretical  justification  of  America's 
abandonment  of  the  principles  of  conmaer- 
cial  freedom  for  which  she  had  fought  was 
provided  two  years  later  by  Alexander 
Hamilton's  famous  report  on  manufac- 
tures; an  ingenious  adaptation  of  the  ideas 
of  Adam  Smith  to  fit  an  essentially  mer- 
cantilist foundation,  which  has  been  a  bul- 
wark for  protectionist  argument  ever  since. 
He  argued  that  the  United  States  must  be 
made  independent  of  other  countries  for 
military  and  other  essential  supplies;  that  if 
all  nations  gave  perfect  liberty  to  commerce 
and  industry  the  United  States  perhaps 
would  not  need  to  encourage  her  manu- 
factures by  a  tariff,  but  that  under  the 
circumstances   she   was    forced   to   do   so. 


TRADE  BARRIERS  121 

Thus,  at  the  very  outset  of  its  career  as  a 
nation,  the  United  States  decided  for  the 
well-trodden  path,  and  abandoned  the 
wilderness  trail  toward  entire  commercial 
freedom  upon  which  it  had  set  out  so 
bravely. 

While  Americans  were  avoiding  any  too- 
startling  innovations,  Pitt  was  taking  some 
bold  steps  in  the  direction  of  commercial 
freedom.  His  attempt  at  the  economic 
solution  of  the  perennial  Irish  question  was 
ill-starred.  Already  the  agitation  of  Ulster 
volunteers,  parading  Dublin  with  cannon 
marked  "free  trade,  or  this"  had  led  to  the 
repeal  of  some  of  the  export  laws,  but  by 
1785  there  was  a  cry  for  the  protection  of 
Irish  products  from  English  competition. 
There  was  also  a  familiar-sounding  agita- 
tion for  an  Irish  republic.  Pitt's  plan  was 
to  put  the  commerce  of  the  two  islands  on 
a  common  basis,  but  it  was  defeated  by  a 
combination  of  British  manufactures  dread- 
ing Irish  competition,  and  by  the  political 


122       THE  FREEDOM  OF  THE  SEAS 

maneuvers  of  Fox,  who  represented  the 
plan  as  likely  to  give  into  Irish  hands  the 
direction  of  commerce  and  the  sacred  navi- 
gation laws.  Thus  was  lost  the  opportunity 
for  what  might  have  meant  the  permanent 
settlement  of  the  Irish  question. 

Pitt  had  better  luck  with  the  commercial 
treaty  of  1786  with  France,  for  which  he 
secured  fair  consideration  by  putting  it  in 
charge  of  William  Eden,  an  able  negotiator, 
who  had  declared  in  Parliament  that  while 
the  existing  British  system  was  not  in  har- 
mony with  abstract  theories  of  commerce, 
the  nation  was  faced  with  a  concrete  situa- 
tion in  the  form  of  pending  commercial 
treaties,  and  the  system  in  being  was  vital 
for  the  "peculiar  situation'*  of  Great 
Britain.  It  was  Dupont  de  Nemours  who 
had  secured  the  insertion  in  the  treaty  of 
Paris  of  the  provision  for  a  commercial 
treaty.  Gerard  de  Rayneval  was  the  ne- 
gotiator on  the  side  of  France.  The  treaty 
marked   a  concession  of  naval  policy  on 


TRADE  BARRIERS  123 

England's  part  in  the  recognition  of  the 
immunity  of  enemy  goods  on  neutral  ships, 
and  the  exclusion  of  provisions  and  naval 
stores  from  the  definition  of  contraband;  on 
both  sides  it  meant  the  abandonment  of  an 
appreciable  number  of  the  high  duties  and 
prohibitions  that  from  time  immemorial  had 
hampered  intercourse  between  the  countries. 
The  debates  about  its  acceptance  in  Eng- 
land centered  for  the  most  part  upon  the 
question  whether  France  was  to  be  regarded 
as  the  natural  and  perpetual  enemy; 
whether  by  substituting  a  near  market  for 
distant  ones  Great  Britain  would  destroy 
her  naval  superiority  and  no  longer  be  able 
to  defend  the  Hberties  of  Europe  and  the 
rights  of  small  nations  against  France's  lust 
for  domination,  or  whether  by  securing  a 
new  market  for  her  manufactured  goods, 
the  materials  for  which  she  gathered  from 
all  corners  of  the  earth,  she  would  really 
increase  her  maritime  strength.  In  the 
Lords,  Shelburne,  now  Lord  Lansdowne, 


124        THE  FREEDOM  OF  THE  SEAS 

declared  that  the  American  war,  the  in- 
crease of  smuggling,  and  the  opinion  of 
merchants  had  demonstrated  that  the  old  re- 
strictive system  of  commerce  was  founded 
on  erroneous  principles;  that  the  idea  of 
wars  for  territory  and  trade  was  every  day 
losing  adlierents,  and  that  the  English  ought 
to  rejoice  at  the  prosperity  of  a  foreign 
country  when  it  was  won  by  fair  means.  In 
that  stronghold  of  conservatism  these  opin- 
ions were  obviously  less  popular  than  those 
of  a  Welsh  bishop  who  regarded  the  French 
as  the  enemies  of  the  liberties  of  Europe, 
and  uttered  the  amiable  opinion  that  the 
treaty  was  only  desirable  if  its  effect  would 
be  to  ruin  French  industries. 

What  insured  the  acceptance  of  the 
treaty  was  the  fact  that  Eden,  during  the 
progress  of  the  negotiations,  had  thoroughly 
canvassed  opinion  in  commercial  circles, 
convinced  merchants  that  the  treaty  was 
being  framed  to  meet  their  interests,  and 
brought  mercantile  opinion  to  the  point  of 


TRADE  BARRIERS  U5 

believing  that  the  "existing  situation"  would 
make  the  opening  of  French  markets  bene- 
ficial to  British  trade,  although  gloomy 
forebodings  were  expressed  lest  the  light 
wines  of  France  supplant  the  good  tradi- 
tional gout-producing  port. 

In  France,  the  ideas  of  the  physiocrats 
had  made  great  progress  through  the  ener- 
getic championship  of  Turgot,  and  later  of 
Vergennes.  Dupont  had  succeeded  in  con- 
vincing Vergennes  in  1782  that  one  way  of 
avoiding  a  war  with  England  would  be  to 
open  the  French  colonies  to  British  trade, 
and  that  such  an  act  would  in  the  end  be 
advantageous  to  French  commerce.  How- 
ever, the  minister  decided  that  the  risk  of 
losing  such  a  profitable  trade  was  too  great 
to  be  taken,  since  there  was  no  hope  of  per- 
suading other  countries  simultaneously  to 
abolish  their  colonial  monopoUes.  In  the 
same  way,  a  royal  decree  of  1785  recognized 
the  theoretic  advantages  of  the  doctrine  of 
free  trade,  but  announced  that  until  com- 


126       THE  FREEDOM  OF  THE  SEAS 

plete  reciprocity  was  possible  French  in- 
dustry would  receive  protection.  It  was  in 
the  hope  of  securing  such  reciprocity  with 
England  that  Dupont  had  secured  in  the 
treaty  of  Paris  the  insertion  of  a  provision 
for  a  treaty  of  commerce,  and  the  treaty  of 
3786  was  largely  his  work.  There  is  no 
doubt  that  the  skill  of  Eden  and  the  firm- 
ness of  Pitt  secured  greater  specific  advan- 
tages for  British  merchants  than  were  ob- 
tained for  the  French,  and  the  treaty  was 
very  unpopular  in  France.  Although  the 
trade  between  the  two  countries  increased 
enormously,  it  was  pointed  out  that  the 
balance  of  trade  was  in  England's  favor, 
and  there  was  no  reticence  on  the  part  of 
individual  manufacturers  whose  business 
suffered  from  English  competition.  The 
short  time  during  which  the  treaty  was  in 
force  makes  it  impossible  to  estimate  its  ef- 
fect with  any  exactitude,  but  it  is  significant 
that  a  by  no  means  progressive  commission 
reported  to  Napoleon  in  1802  that  on  the 


TRADE  BARRIERS  127 

whole  it  had  been  beneficial,  and  so  far  from 
injuring  French  industry  had  stimulated  it. 
Its  most  important  effect  lay  in  another 
direction.  When  the  treaty  was  first  laid 
before  Parliament,  one  member  expressed 
great  disappointment  that  no  provision  had 
been  made  for  the  avoidance  of  war  by 
submission  of  disputes  to  arbitration.  But 
indirectly  that  end  was  attained,  for  the 
improved  understanding  between  the  two 
nations,  due  to  the  commercial  intercourse 
under  the  treaty,  probably  prevented  the 
two  countries  going  to  war  in  1787.  The 
taste  in  each  country  acquired  for  the  goods 
of  the  other  led  to  continued  intercourse 
even  under  the  unpromising  conditions 
prevalent  during  the  Napoleonic  wars. 

It  might  be  supposed  that  the  French 
Revolution,  permeated  with  modern  thought 
and  sweeping  away  old  abuses,  would  have 
made  havoc  with  the  old  mercantilist  ideas. 
But  while  the  Revolution  did  away  with  the 
barriers  to  internal  trade,  it  had  singularly 


128       THE  FREEDOM  OF  THE  SEAS 

little  effect  upon  commercial  practices. 
While  in  the  assemblies  revolutionary 
leaders  were  declaiming  pure  theory  and 
idealism,  their  committees  on  economic  af- 
fairs were  holding  matter-of-fact  meetings 
where  they  discussed  the  testimony  and 
considered  the  petitions  of  merchants  and 
manufacturers,  and  for  the  most  part  the 
decisions  of  the  assemblies,  so  radical  along 
political  lines,  in  economic  matters  followed 
the  conservative  reports  of  these  committees. 
Two  manufacturers  and  a  merchant  drafted 
the  first  two  reports  on  commercial  policy 
made  to  the  national  assembly.  Both  re- 
ports paid  lip  service  to  the  new  ideas. 
"Among  a  free  people  commerce  must  not 
be  enslaved,"  but  freedom  was  to  be  inter- 
preted in  the  sense  of  protection  Jo  national 
commerce  and  security  for  home  manufac- 
turers. England's  commercial  policy  was 
based  upon  her  tariff,  and  freedom  of  com- 
merce should  not  be  adopted  by  France 
unless  every  other  nation  was  ready  to 


TRADE  BARRIERS  129 

embrace  it.  The  tariff  proposal  submitted 
with  this  introduction  was  drawn  up  after 
many  interviews  with  merchants  and  manu- 
facturers, and  a  careful  perusal  of  petitions 
for  protection  of  the  petitioners'  product. 
The  proposed  schedule  provided  a  sensible 
increase  over  the  existing  one.  The  Assem- 
bly, while  not  inclined  to  revolutionary 
economic  measures,  was  not  prepared  to 
make  higher  tariff  walls  already  formidable, 
and  the  voice  of  progress  was  not  entirely 
silent.  One  member  took  the  ground  that 
the  prohibitory  system,  far  from  being  ad- 
vantageous to  Great  Britain,  had  lost  her 
North  America,  and  left  her  without  an 
ally  in  Europe.  He  believed  that  France 
was  not  ready  for  free  trade,  but  that  she 
ought  to  lower  her  tariff  and  abandon  pro- 
hibitions. The  Assembly,  while  feeling  per- 
fectly competent  to  deal  with  political 
institutions,  felt  it  wiser  to  leave  trade 
matters  to  those  who  knew  about  them. 
However,  it  agreed  to  call  for  a  new  report, 


ISO       THE  FREEDOM  OF  THE  SEAS 

and  it  enlarged  the  committee.  One  of  the 
new  members  was  Dupont  de  Nemours,  and 
his  hand  has  been  seen  in  the  final  report, 
which  greatly  reduced  the  number  of  pro- 
hibitions and  export  duties,  lowered  many 
duties,  and  admitted  free  many  foodstuffs 
and  raw  materials. 

Besides  adopting  this  report,  the  Assem- 
bly took  steps  along  familiar  lines  to  in- 
crease the  country's  maritime  resources. 
The  importation  of  foreign-built  vessels 
was  prohibited.  Bounties  on  fish  were 
established,  and  foreign  fishing  prohibited. 
The  last  change  was  advised  specifically  on 
the  grounds  of  England's  control  of  the 
seas.  "We  must  divide  that  empire  with 
her,  or  rather  we  must  free  the  seas  in  order 
to  fraternise  upon  them  with  all  the  peoples 
who  can  and  will  associate  with  us  in  a  free, 
frank  and  untrammelled  commerce." 

The  immediate  steps  toward  freeing  the 
sea  included  the  invasion  of  the  Nether- 
lands and  the  opening  of  the  Scheldt  to 


TRADE  BARRIERS  131 

commerce.  This  brought  the  French  repub- 
lic into  conflict  with  two  features  of  British 
policy.  The  Scheldt  had  been  closed  to 
commerce  by  a  solemnly  attested  treaty,  and 
it  was  felt  to  be  a  fundamental  necessity 
for  British  security  that  the  Netherlands  be 
kept  from  falling  into  the  hands  of  one  of 
the  great  powers.  Arguments  against 
French  revolutionary  principles  and  prac- 
tice were  mingled  with  warnings  of  the 
danger  to  trade,  and  to  England's  dominion 
of  the  narrow  seas,  of  a  French  occupation 
of  Belgium,  in  the  debates  which  preceded 
England's  entrance  into  the  war. 

The  war  hastened  the  adoption  by  France 
of  the  policy  of  restriction  to  which  it  was 
then  generally  believed  Great  Britain  owed 
her  maritime  greatness.  Again  and  again 
the  project  of  a  navigation  act  had  been 
put  forward,  with  deprecating  speeches 
admitting  that  its  principles  were  not  in 
accordance  with  the  doctrine  of  unlimited 
commercial  liberty.     But  such  liberty  was 


132       THE  FREEDOM  OF  THE  SEAS 

dismissed  as  suitable  only  to  the  system  of 
a  universal  republic,  probably  as  difficult  of 
realization  as  that  of  Plato.  It  took  Barere, 
the  Anacreon  of  the  guillotine,  to  sweep 
the  bill  through  the  assembly  on  September 
21,  1793,  a  date  chosen  in  order  that  on  the 
anniversary  of  the  day  when  in  establishing 
the  republic  France  had  proclaimed  "the 
freedom  of  France  or  rather  the  freedom 
of  Europe,"  she  should  proclaim  "freedom 
of  commerce  or  rather  freedom  of  the  seas." 
We  who  are  accustomed  to  the  logic  by 
which  the  Germans  claimed  that  the  increase 
of  German  naval  power  and  the  applica- 
tion of  barbarity  to  naval  warfare  were 
steps  toward  freedom  of  the  seas  ought  to 
have  no  difficulty  in  following  the  argu- 
ments by  which  Barere  convinced  his  audi- 
ence that  the  French  Navigation  Act,  copied 
after  that  of  England,  would  be  a  weapon 
of  emancipation,  whereas  the  English  act 
was  infamous  and  based  on  forgetfulness  of 
the  rights  of  other  nations. 


TRADE  BARRIERS  133 

Thus' eighteenth  century  idealism  recog- 
nized the  theory  of  commercial  freedom  that 
would  have  meant  real  freedom  of  the  seas, 
but  bowed  in  practice  to  the  arguments  of 
the  ledger  of  the  man  of  business  and 
reared  new  trade  barriers  instead  of  letting 
down  the  old.  France  and  America  acted 
logically  when  they  supplemented  this  policy 
of  trade  restriction  by  imitating  the  British 
policy  and  enacting  navigation  acts,  in 
order  to  prepare  in  advance  naval  forces  to 
fight  the  wars  which  the  policy  of  mutual 
restrictions  would  inevitably  engender. 

At  the  same  time  eighteenth  century  in- 
dividualism adopted  and  extended  the 
theory  that  freedom  of  the  seas  in  time  of 
war  could  be  secured  by  limiting  belligerent 
right  in  favor  of  the  neutral  trader.  The 
extension  of  immunity  from  capture  to  all 
private  property,  which  was  imphed  in  the 
treaty  of  1785  between  the  United  States 
and  Prussia,  was  congenial  to  an  age  that 
conceived  of  wars  as  contests  to  be  limited 


134       THE  FREEDOM  OF  THE  SEAS 

as  far  as  possible  to  the  armed  forces  of  the 
belligerents.  As  long  as  this  theory  held, 
it  was  natural  that  sea  freedom  should  be 
measured  by  the  extent  to  which  the  mer- 
chant could  go  about  his  business  untroubled 
by  war,  and  that  the  immunity  of  private 
property  from  capture  at  sea  should  come 
to  be  regarded  as  a  synonym  for  freedom 
of  the  seas. 


VI 

FRANCE  AND  FREEDOM 


**  France  has  fought  on  land  for  her  freedom  and  her  natural 
boundaries;  she  now  means  to  fight  on  the  sea,  not  for  herself 
alone,  but  to  liberate  the  ocean  and  emancipate  all  peoples  who 
are  victims  of  England's  cupidity.  It  is  not  alone  the  wrongs  of 
many  centm-ies  that  she  wishes  to  avenge  to-day;  it  is  for  the 
interests  of  Europe  and  all  humanity,  that  she  intends  to  establish 
the  freedom  of  the  seas." 

Talleyrand. 

"  The  little  finger  of  France  in  maritime  depredations  is  thicker 
than  the  loins  of  Britain,  and  the  safety  of  the  civilized  world 
not  yet  subjugated  by  France  greatly  depends  on  the  barrier 
opposed  to  her  boundless  ambition  and  rapacity  by  the  navy 
of  England." 

Timothy  Pickering. 


VI 
FRANCE  AND  FREEDOM 

THE  war  between  England  and  the 
French  Revolution  took  on  from 
the  outset  the  character  of  a  com- 
mercial struggle.  The  faction  in  control  of 
the  French  state  believed  that  the  pros- 
perity of  Great  Britain  was  apparent  rather 
than  real,  and  would  collapse  with  the  un- 
dermining of  her  overseas  trade,  and  that 
French  commerce  could  be  made  to  increase 
at  the  expense  of  British.  Great  Britain 
resorted  at  once  to  the  device  of  weakening 
her  opponent  by  cutting  off  food  supplies. 
Even  before  the  declaration  of  war,  she 
was  detaining  grain  vessels  bound  for 
French  ports,  and  she  promptly  secured 

187 


138       THE  FREEDOM  OF  THE  SEAS 

agreements  with  Russia,  Spain,  Prussia  and 
other  powers  to  aid  in  intercepting  cargoes 
of  food  and  naval  stores,  and  to  injure 
French  commerce  wherever  possible,  so  as 
to  "bring  her  to  just  conditions  of  peace." 
An  Order  in  Council  of  June,  1793,  author- 
ized the  detention  of  all  vessels  carrying 
breadstuffs  to  a  French  port  or  a  port  oc- 
cupied by  France.  The  northern  powers 
were  notified  that  fleets  in  the  North  Sea 
and  the  Baltic  would  enforce  this  order. 
Denmark  entered  a  dignified  protest,  de- 
fining her  conception  of  the  rights  and 
duties  of  neutrals.  She  also  protested  to 
Russia  against  her  abandonment  of  the 
neutral  code.  Another  Order  in  Council 
attacked  the  trade  with  the  French  colonies, 
according  to  the  Rule  of  1756,  but  the 
Americans  secured  a  modification  on  the 
ground  that  since  1778  the  French  West 
Indian  trade  had  been  partially  open  to 
them.  By  declaring  a  blockade  of  the  West 
Indies,  Great  Britain  then  pursued  her  in- 


FRANCE  AND  FREEDOM  139 

tention  of  cu-tting  off  the  French  colonies,  and 
also  applied  to  the  American  trade  a  doc- 
trine that  Lord  Hardwicke  had  sketched  in 
1756,  that  the  American  custom  of  landing 
the  products  of  the  West  Indian  islands  in 
a  neutral  country  and  then  trans-shipping 
them  to  an  enemy  port  did  not  break  the 
voyage,  and  that  the  cargoes  were  captur- 
able.  This  device,  destined  to  become 
famous  as  the  doctrine  of  continuous  voy- 
age, together  with  the  British  procedure  of 
treating  foodstuffs  as  contraband,  meant 
serious  injury  to  the  trade  of  America, 
swollen  to  huge  proportions  since  the  out- 
break of  war.  The  absence  of  any  agree- 
ment regulating  the  relations  between  the 
United  States  and  Great  Britain  was 
strongly  felt,  and  the  project  was  repeat- 
edly brought  forward  of  enacting  the 
principles  of  the  English  Navigation  Act  in 
order  to  bring  pressure  upon  England  to 
lead  her  to  agree  to  a  commercial  treaty. 
Jefferson  was  finally  converted  to  the  idea, 


140       THE  FREEDON  OF  THE  SEAS 

and  Madison  introduced  resolutions  pro- 
viding for  the  taxation  of  vessels  of  nations 
having  no  commercial  treaty  with  the 
United  States,  and  excluding  the  vessels  of 
nations  that  excluded  American  vessels. 
The  party  led  by  Hamilton,  who  were  ad- 
vocates of  keeping  on  good  terms  with 
England  and  avoiding  any  steps  which 
would  hamper  commerce,  attacked  the  reso- 
lutions, ridiculing  the  idea  "that  trade  is  to 
be  made  free  by  imposing  more  and  greater 
shackles  upon  it."  The  discussions  were 
still  going  on  when  Washington  transmitted 
to  Congress  a  report  of  the  damages  done 
to  American  commerce  by  the  acts  of  bel- 
ligerents. Congress  decided  to  use  Jeffer- 
son's plan  of  economic  pressure  as  a  sub- 
stitute for  war,  and  voted  an  embargo. 
Washington  believed  more  in  negotiations 
than  in  embargoes,  and  sent  Jay  to  Eng- 
land to  endeavor  to  obtain  a  commercial 
treaty.  Jay  was  appointed  at  Hamilton's 
suggestion,  and  represented  the  Federalist 


FRANCE  AND  FREEDOM  141 

policy  of  avoiding  trouble  with  England  at 
all  costs.  He  was  instructed  to  seek  re- 
ciprocity in  the  West  Indian  trade,  recog- 
nition of  the  immunity  of  enemy  goods 
under  a  neutral  flag,  and  general  security 
for  neutrals.  As  is  well  kno\Mi,  the  treaty 
he  secured  covered  none  of  these  points,  but 
recognized  the  British  usage  as  to  capture, 
and  put  Great  Britain  on  the  most  favored 
nation  basis,  freeing  her  trade  and  limiting 
our  own.  As  by  our  treaty  with  France 
recognizing  that  free  flag  made  free  goods, 
British  goods  on  American  vessels  were 
protected  from  capture,  it  would  have  been 
most  desirable  to  secure  immunity  for 
French  goods  on  the  same  conditions;  but 
it  was  a  concession  that  England  would 
have  been  very  unlikely  to  make.  The 
concession  that  foodstuffs  were  contraband 
was  a  second  indication  that  Americans  had 
gone  a  long  way  from  their  position  in  the 
days  of  the  Armed  Neutrality.  The  treaty 
put  our  trade  on  a  definite  footing,  and 


142       THE  FREEDOM  OF  THE  SEAS 

indemnity  was  secured  for  vessels  captured 
in  contravention  of  agreement.  The  Fed- 
eralists believed  the  arrangement  infinitely 
preferable  to  a  war,  but  Republican  opinion 
denounced  the  treaty  as  sacrificing  Ameri- 
ca's most  cherished  principles. 

The  French  had  not  been  behind  the 
English  in  making  war  on  commerce.  Their 
decree  ordering  the  seizure  of  foodstuffs  or 
enemy  goods  bound  for  England  antedated 
the  British  edict.  Rewards  were  offered 
privateers  for  bringing  in  provision  ships, 
and  Genet  was  despatched  to  America,  his 
pockets  bulging  with  letters  of  marque,  and 
bis  instructions  bidding  him  obtain  a  liberal 
treaty,  "in  which  two  great  peoples  shall 
suspend  their  commercial  and  political  in- 
terests, and  establish  a  mutual  understand- 
ing to  defend  the  empire  of  liberty,  wherever 
it  can  be  embraced."  He  was  lavish  of 
explanations  of  France's  pain  at  being 
obliged  to  resort  to  legislation  foreign  to 
her  principles,  but  said  she  was  forced  to 


FRANCE  AND  FREEDOM  14S 

follow  a  course  she  disapproved  as  long  as 
England  persisted  in  trying  to  dominate 
the  seas.  In  other  words,  the  French  re- 
gretfully but  firmly  abandoned  their  cham- 
pionship of  free  ships,  free  goods.  They 
made  a  concession  in  favor  of  American 
vessels,  because  of  the  treaty  of  1778,  but 
they  revoked  it  when  the  Jay  treaty  was 
made  public,  protesting,  as  did  Spain,  at 
America's  abandonment  of  her  traditional 
principles. 

France  by  promoting  an  armed  neutrahty 
tried  to  turn  to  advantage  in  1794  as  she 
had  done  in  1780  the  indignation  of  the 
northern  powers  at  British  interference  with 
their  commerce.  Denmark  and  Sweden 
willingly  agreed  to  pledge  support  to  the 
neutral  code  and  the  neutralization  of  the 
Baltic.  Jay  had  been  instructed  to  investi- 
gate the  status  of  the  movement  when  he 
arrived  in  Europe,  and  the  willingness  of 
Great  Britain  to  sign  the  treaty  was  due  in 
part  to  her  desire  to  prevent  the  accession 


144       THE  FREEDOM  OF  THE  SEAS 

of  the  United  States.  She  also  relaxed  her 
policy  as  to  provision-laden  ships,  and  the 
attempted  coalition  came  to  nothing. 

The  establishment  of  the  Directory 
meant  the  inauguration  of  a  definite  com- 
mercial policy,  which  was  pursued  unbroken 
through  the  period  of  Napoleon's  domina- 
tion. It  was  a  mercantilist  policy,  and  its 
spirit  had  found  voice  in  the  opposition  to 
the  treaty  of  1786  and  in  the  tariff  reports. 
One  of  its  mouthpieces,  Ducher,  actually 
held,  or  professed  to  hold,  that  the  physio- 
crats and  their  followers  were  in  the  pay  of 
Great  Britain,  which  hoped  to  ruin  France 
by  inducing  her  to  adopt  a  Uberal  commer- 
cial policy.  All  the  efforts  of  the  liberals 
to  free  the  trade  of  the  colonies  met  with 
opposition  from  Ducher  and  his  party,  who 
beUeved  that  even  the  abolition  of  duties 
between  the  colonies  and  the  mother  coun- 
try wDuld  be  placing  the  French  merchant 
marine  in  Pitt's  hands.  The  new  policy 
manifested  itself  in  two  ways;  one  was  in 


FRANCE  AND  FREEDOM  145 

attempting  the  destruction  of  English  com- 
merce, and  in  the  pursuit  of  this  aim 
France  affronted  the  United  States  and  al- 
lowed a  state  of  undeclared  war  to  continue 
for  three  years.  The  other  side  of  the 
mercantilist  policy,  which  was  to  fill  the  mind 
of  the  Corsican  adventurer  for  nearly  two 
decades,  was  inaugurated  by  the  Directory 
before  he  came  into  power.  Its  aim  was 
to  weaken  England  by  attacking  her  in  the 
East,  and  to  do  this  under  the  slogan,  "free- 
dom of  the  seas." 

A  little  work  widely  read  at  the  time,  and 
reconmiended  in  the  Assembly  to  all  legis- 
lators, Arnould's  Systeme  maritime  et 
'politique  des  Europeens,  succinctly  formu- 
lated the  policy.  Arnould  was  chief  of 
the  Bureau  of  Commerce,  and  his  work 
warned  his  compatriots  of  the  danger  in- 
herent in  the  overmastering  naval  power  of 
Great  Britain.  Discussing  the  southward 
expansion  of  Russia,  he  worked  out  an  eigh- 
teenth century  version  of  the  Drang  nach 


146       THE  FREEDOM  OF  THE  SEAS 

Osten,  with  roles  differently  assigned.  His 
argument  was  that  if  Russia  should  come 
to  command  the  Black  Sea  and  the  Mediter- 
ranean, England,  the  exploiter  of  the  bulk 
of  Russian  commerce,  would  be  able  to 
monopolize  the  Levant  trade.  The  two 
powers  would  open  up  a  new  trade  route 
by  the  rivers  emptying  into  the  Danube,  and 
in  order  to  do  this  would  probably  take 
Austria  into  their  coalition.  The  commerce 
of  Poland  could  be  turned  south  along  the 
Dniester,  absorbing  the  grain  of  the  north, 
and  by  their  control  of  the  Mediterranean 
and  influence  with  the  Barbary  pirates  the 
three  powers  could  at  will  starve  the  rest 
of  Europe.  Through  the  Russian  alliance 
with  Persia,  England  would  be  able  to  navi- 
gate the  Caspian,  and  by  her  control  of  the 
northern  as  well  as  of  the  Red  Sea  route, 
would  hold  the  keys  of  trade  with  the  Far 
East.  In  order  to  prevent  the  consumma- 
tion of  this  London-to-Bagdad  scheme, 
France  must  bolster  up  the  power  of  the 


FRANCE  AND  FREEDOM  147 

Turk,  in  the  hope  of  winning  from  him  the 
right  to  overland  trade  with  India,  hy  means 
of  which  she  might  some  day  hope  to  de- 
stroy England's  despotic  rule  in  that 
country. 

This  was  the  theory  upon  which  Napoleon 
acted  when  he  told  the  Directory  that 
France  must  strengthen  the  Turkish  em- 
pire, and  strike  at  England  through  Egypt. 
Upon  it  the  Directory  acted  in  authorizing 
the  Egyptian  expedition,  by  which  France 
was  to  secure  the  "free  and  exclusive"  use 
of  the  Red  Sea.  The  British  sea  bogey  was 
a  convenient  argument,  and  from  this  time 
forward  "freedom  of  the  seas"  was  an  over- 
worked slogan  against  England.  "The 
French  will  no  longer  allow  a  power  which 
seeks  to  base  its  prosperity  on  the  misfor- 
tune of  other  nations,  and  to  increase  its 
commerce  by  the  ruin  of  other  peoples; 
which  aspires  to  the  sovereignty  of  the  seas, 
desiring  to  introduce  everywhere  its  own 
manufactures,  but  to  receive  nothing  from 


148       THE  FREEDOM  OF  THE  SEAS 

foreign  industry,  to  enjoy  any  longer  the 
fruits  of  its  guilty  speculations."  With  this 
argument,  Frenchmen  were  urged  to  sub- 
scribe to  the  loan  for  the  invasion  of  Eng- 
land, and  Talleyrand  wrote  French  consuls 
how  France  was  setting  about  to  free  the 
seas  for  the  cause  of  all  humanity. 

In  carrying  out  these  noble  aims,  the 
French  government  permitted  itself  exten- 
sions of  belligerent  right  beyond  any  in- 
dulged in  by  Great  Britain.  The  decree  of 
July  2,  1796,  announcing  that  henceforth 
France  would  treat  neutral  vessels  as  they 
allowed  England  to  treat  them,  was  followed 
in  October  by  the  authorization  of  inter- 
ference with  American  commerce  in  the 
West  Indies,  and  in  the  following  March 
by  a  decree  that  neutral  ships  laden  wholly 
or  in  part  with  enemy  property  were  cap- 
turable.  In  successive  decrees,  property 
not  provable  as  neutral  was  to  be  capturable 
under  the  American  flag;  all  vessels  carry- 
ing British  goods  were  declared  good  prize; 


FRANCE  AND  FREEDOM  149 

American  ships  without  a  crew  list  were 
good  prize;  contraband  was  to  include 
naval  stores,  and  Americans  taking  a  com- 
mission to  serve  against  France  were  to  be 
treated  as  pirates.  This  last  provision  was 
later  extended  to  include  all  Americans 
found  serving  on  British  vessels;  which 
meant  that  American  seamen  impressed  by 
the  British,  if  captured,  were  liable  to  that 
fate.  It  is  not  strange  that  Americans  were 
not  greatly  impressed  by  France's  "piratical 
mode  of  liberating  the  seas." 

The  situation  was  a  difficult  one  for  the 
United  States,  and  a  decision  was  reached 
to  reverse  her  entire  policy.  In  renewing 
the  treaty  of  1785  with  Prussia,  John 
Quincy  Adams  was  instructed  instead  of 
continuing  the  support  of  liberal  doctrines 
to  give  up  advocacy  of  the  abolition  of 
privateering,  to  abandon  as  impractical  the 
principle  that  free  flag  made  free  goods,  and 
to  recognize  that  naval  stores  were  contra- 
band.   Adams  protested  against  thus  giving 


160       THE  FREEDOM  OF  THE  SEAS 

up  opposition  to  the  "domineering  policy  of 
Great  Britain,"  but  in  the  course  of  the 
negotiations  it  seemed  likely  that  the  United 
States  would  be  forced  to  declare  war  on 
France,  and  the  government  felt  still  more 
strongly  that  the  attempt  to  defend  neutral 
rights,  apparently  futile,  would  be  a  very 
costly  one  owing  to  the  activities  of  French 
privateers  and  the  impossibility  of  receiving 
justice  from  her  notoriously  ill-regulated 
courts. 

Prussia  objected  to  the  abandonment  of 
free  flag,  free  goods,  and  refused  to  admit 
naval  stores  to  be  contraband;  timber  for 
shipbuilding  being  one  of  her  important 
exports.  However,  the  Prussian  govern- 
ment recognized  that  under  the  circum- 
stances there  was  little  hope  for  recognition 
of  the  neutral  code.  The  statement  was 
inserted  that  as  free  flag,  free  goods  had  not 
been  successful  in  practice,  the  signatories 
would  be  governed  by  the  "generally  recog- 
nized principles"  of  international  law,  but 


FRANCE  AND  FREEDOM  151 

that  after  the  war  they  would  co-operate 
to  procure  general  adoption  of  a  code  to 
protect  neutral  commerce.  The  agreement 
not  to  commission  privateers  was  also 
omitted,  since  the  "pleasant  theory"  of 
abolition  was  difficult  of  realization. 

The  abandonment  of  the  neutral  code 
was  more  significant  in  this  case  than  it  had 
been  in  the  Jay  treaty,  as  in  the  latter  it  had 
been  forced  by  Great  Britain,  while  now  it 
was  forced  on  Prussia  by  the  former  victim 
of  coercion. 

Denmark  and  Sweden,  as  usual,  suffered 
from  Great  Britain's  practices.  Denmark 
resorted  to  convoys,  and  had  a  violent  con- 
troversy over  Great  Britain's  refusal  to  re- 
spect the  principle  that  a  convoy  exempts 
merchant  vessels  from  search.  Again, 
France  made  use  of  neutral  indignation 
against  England's  extension  of  belligerent 
right,  and  in  1800,  under  the  influence  of 
Napoleon,  the  Czar  Paul  proposed  to  the 
two  powers  and  to  Prussia  an  armed  neu- 


152       THE  FREEDOM  OF  THE  SEAS 

trality  to  revive  the  principles  of  1780  "and 
thus  to  ensure  the  freedom  of  the  seas." 
This  time  the  right  of  convoy  was  asserted 
in  addition.  The  response  of  the  British 
government  was  to  lay  an  embargo  on  the 
vessels  of  the  contracting  parties  in  British 
ports,  and  order  the  seizure  of  the  islands 
and  property  of  Denmark  and  Sweden  in 
the  West  Indies.  Strong  opinions  on  the 
subject  were  expressed  in  Parliament.  Pitt 
maintained  that  Englishmen  ought  to  shed 
the  last  drop  of  blood  rather  than  yield  the 
principles  of  the  neutral  code,  and  every 
shade  of  opinion  was  expressed,  from  the 
lofty  one  that  England  stood  for  the  inter- 
ests of  Europe,  which  demanded  that  the 
same  power  should  not  be  supreme  both  on 
sea  and  on  land,  to  Lansdowne's  conclusion 
that  "his  idea  with  regard  to  liberum  mare 
resolved  itself  into  this,  that  it  had  no  con- 
nexiDn  whatever  with  any  question  of  law, 
but  was  altogether  a  question  of  power.'* 
The  collapse  of  the  Armed  Neutrality  of 


FRANCE  AND  FREEDOM  153 

1800  was  inevitable  after  the  destruction  of 
the  Danish  fleet  by  Nelson,  and  the  assas- 
sination of  the  Czar  Paul,  whose  successor 
had  no  enthusiasm  for  Napoleon  and  did 
have  a  sound  respect  for  the  British  nation. 
He  signed  a  convention  with  England,  to 
which  Denmark  and  Sweden  later  acceded, 
in  which  the  principle  of  the  free  flag  was 
not  recognized,  and  which  admitted  the  right 
of  the  warships  of  a  belligerent,  though  not 
of  his  privateers,  to  search  a  convoyed  fleet. 
On  the  whole,  the  advantages  were  with 
Great  Britain,  but  the  convention  was  criti- 
cized as  yielding  too  much,  for  foodstuffs 
were  declared  not  contraband,  and  the 
necessity  for  effectiveness  in  a  blockade 
apparently  recognized,  although  the  sub- 
stitution of  a  preposition  for  a  conjunction 
allowed  a  loophole  for  a  different  interpre- 
tation. The  United  States  had  done  noth- 
ing to  support  the  Armed  Neutrality, 
profiting  by  the  advice  of  John  Quincy 
Adams,  who  foresaw  that  France  would  be 


154       THE  FREEDOM  OF  THE  SEAS 

the  only  country  to  profit  much  by  it.  She 
ended  her  three  years  of  undeclared  war 
with  France  by  a  peace  which  recognized 
the  principles  of  the  Armed  Neutrality,  and 
under  Jefferson's  administration  entered 
upon  what  promised  to  be  an  era  of  peace 
and  tranquillity.  American  trade  was  in  a 
flourishing  condition,  in  spite  of  British 
maritime  policy,  which  was  injuring  the 
trade  of  England  more  than  that  of  any 
other  country.  In  fact,  England  signed  the 
peace  of  Amiens  in  order  to  have  an  op- 
portunity to  rehabilitate  her  commerce. 
The  British  merchant  had  suddenly  found 
himself  without  a  place  in  the  sun,  while 
American  merchants  were  sunning  them- 
selves in  the  market  places  where  British 
goods  had  formerly  held  the  monopoly. 

But  a  great  outcry  arose  when  the  treaty 
of  Amiens  was  made  public,  for  it  con- 
tained no  commercial  provisions,  and  Brit- 
ish conquests,  which  had  been  expected  to 
develop  into  markets  for  British  goods,  were 


FRANCE  AND  FREEDOM  155 

handed  back  to  France.  Moreover,  Na- 
poleon did  not  remove  the  war  duties  in 
French  ports.  Englishmen  observed  with 
disquietude  that  he  was  taking  steps  to 
strengthen  his  hold  upon  Holland,  Switzer- 
land, and  Italy,  which  would  mean  the 
closing  of  their  markets  to  British  com- 
merce. Moreover,  his  activities  in  the  new 
world  were  looked  upon  with  suspicion. 
The  British  could  not  know  that  the  failure 
to  reduce  San  Domingo  was  to  mean  the 
abandonment  of  his  grandiose  scheme  for 
making  Louisiana  the  center  of  a  great  and 
exclusive  colonial  trade,  and  they  heard  with 
anxiety  of  the  departure  of  huge  French 
fleets,  and  discussed  the  possibilities  of  a 
commercial  war  after  the  war.  Suspicion 
was  rife  that  Napoleon  meant  the  peace  to 
last  only  until  France  had  a  sufficient  navy 
to  secure  "that  which  she  called  the  freedom 
of  the  seas,  but  which  would  be  in  fact  the 
annihilation  of  the  commerce  of  Great 
Britain."    In  short,  there  was  a  feeling  that. 


156        THE  FREEDOM  OF  THE  SEAS 

as  Sheridan  put  it,  Napoleon  might  be 
planning  to  carry  off  British  credit,  capital, 
and  commerce,  "like  so  many  busts  and 
marbles."  But  it  took  the  Corsican's  diplo- 
matic activities  in  the  Orient,  and  his  at- 
tempts to  establish  good  relations  with 
Russia,  to  bring  about  the  excitement  which 
demanded  the  re-opening  of  the  war:  a 
consummation  for  which  Napoleon  had  done 
much  judicious  planning. 

The  second  phase  of  the  struggle  with 
France  was  marked  by  a  still  greater  con- 
fusion as  to  neutral  and  belligerent  rights. 
It  was  well  known  that  Americans  were 
carrying  French  colonial  products  to  the 
United  States,  to  avoid  capture,  and  trans- 
shipping them  to  European  ports.  Great 
was  the  rejoicing,  therefore,  when  what 
James  Stephen  described  tellingly  as  "the 
fraud  of  the  neutral  flags"  was  attacked  by 
the  famous  decision  of  the  British  Ad- 
miralty in  the  Essex  case,  that  touching  at 
a  neutral  port  did  not  break  the  voyage, 


FRANCE  AND  FREEDOM  157 

and  that  therefore  the  cargo  was  forfeited 
according  to  the  doctrine  of  continuous 
voyage.  Great  numbers  of  American  ships 
were  removed  from  what  freedom  there  was 
upon  the  seas  to  the  snug  but  unprofitable 
seclusion  of  British  ports.  Great  dissatis- 
faction was  expressed  with  the  decision, 
which  to  modern  eyes  seems  to  have  been 
a  just  one,  if  the  doctrine  of  continuous 
voyage  is  accepted.  Indeed,  the  decisions 
of  the  High  Court  of  Admiralty,  after  the 
appointment  in  1798  of  Sir  William  Scott, 
later  Lord  Stowell,  maintained  a  very  high 
standard.  This  was  not  the  case  with  the 
local  courts,  or  with  the  decisions  of  his 
predecessor,  Sir  James  Marriott,  who  is 
said  to  have  declared  in  one  case  that  Eng- 
land by  her  position  formed  a  natural 
blockade  of  the  continent,  and  must  use  the 
advantage  given  her  by  Providence.  In  his 
day  there  was  probably  some  justice  in  the 
saying  of  John  Quincy  Adams  that  the 
English  admiralty  courts  seemed  to  be  gov- 


158       THE  FREEDOM  OF  THE  SEAS 

erned  solely  by  the  code  that  was  Great 
Britain's  only  guide  in  maritime  affairs: 
"Rule  Britannia,  rule  the  waves."  Feeling 
in  America  was  at  high  pitch  over  the  Essex 
decision;  the  slogan,  "free  ships,  free 
goods"  was  brought  out  of  its  recently- 
acquired  obscurity,  and  Jefferson  nervously 
faced  the  possibility  of  being  forced  into 
war. 

The  events  of  the  present  war  have  re- 
vived interest  in  the  competition  in  the  ex- 
tension of  belligerent  right  which  France 
and  England  began  in  1806.  To  England's 
blockade  of  Prussian  ports  Napoleon  re- 
plied with  his  famous  Berlin  decree,  which 
declared  the  British  Isles  blockaded  on  the 
grounds  of  Great  Britain's  failure  to  con- 
form to  international  law  as  recognized  by 
civilized  nations,  her  war  on  commerce,  her 
capture  of  neutral  property  and  her  proc- 
lamation of  paper  blockades  with  the  intent 
of  ruining  the  commerce  of  the  world  for 
her  own  advantage.    Great  Britain  riposted 


FRANCE  AND  FREEDOM  159 

by  an  Order  in  Council  cutting  off  com- 
merce with  France.  Napoleon's  counter- 
thrust  was  to  declare  good  prize  all  vessels 
that  conformed  with  Great  Britain's  regu- 
lations. Later  Great  Britain  forbade  all 
trade  in  commodities  produced  or  manu- 
factured in  France,  except  under  license. 
The  situation  produced  by  this  system 
would  have  been  absolutely  intolerable  had 
it  not  been  for  the  anomalous  system  of  pro- 
viding by  licenses  for  the  evasion  of  this 
thorough-going  policy  of  strangulation.  As 
it  was,  this  legalized  smuggling,  with  the 
illegal  smuggling  that  accompanied  it,  as- 
sumed incredible  proportions. 


VII 

INTERNATIONAL  EX- 
PERIMENTS 


"  If  the  freedom  of  the  sea  is  abridged  by  compact  for  any 
new  purpose,  the  example  may  lead  to  other  changes.  And  if 
its  operation  (search)  is  extended  to  a  time  of  peace  as  well  as  of 
war,  a  new  system  will  be  conmienced  for  the  dominion  of  the  sea." 

Jame9  Monroe, 


VII 

INTERNATIONAL  EX- 
PERIMENTS 

IN  establishing  by  the  Orders  in  Council 
the  system  of  cutting  off  trade  with 
France,  British  ministers  had  in  view, 
not  alone  the  strangling  of  the  enemy,  but 
also  the  striking  of  a  blow  at  what  seemed 
to  them  the  undue  expansion  of  American 
commerce.  The  fact  appears  in  the  corre- 
spondence of  Canning  and  Perceval,  and  it 
leaked  out  in  the  parliamentary  debates  of 
1812.  However,  the  official  defense  of  the 
measures  was  that  they  were  "defensive 
retaliation"  against  the  measures  of  France. 
Those  measures  were  equally  disturbing  to 
trade;  and  against  the  assumption  of  both 

163 


164       THE  FREEDOM  OF  THE  SEAS 

governments  that  "neutral  commerce  de- 
pends solely  upon  the  toleration  of  belliger- 
ents," the  United  States  in  her  turn  resorted 
to  measures  of  commercial  restriction  in  the 
only  way  that  Jefferson  believed  them 
justifiable:  as  a  substitute  for  war.  When 
the  economic  weapons  of  embargo  and  non- 
intercourse  seemed  to  Americans  to  have 
proved  unavailing  and  they  resorted  to  war 
in  1812,  they  fought  England  rather  than 
France,  partly  because  of  the  shifty  diplom- 
acy of  Napoleon,  partly  because  of  party 
conditions  and  American  indignation  on  the 
subject  of  impressment. 

Since  the  agitation  of  British  merchants 
and  manufacturers  injured  by  the  British 
system  had  secured  the  withdrawal  of  the 
obnoxious  Orders  before  our  declaration  of 
war,  although  too  late  for  the  news  to  reach 
America,  impressment  remained  the  only 
genuine  casus  belli;  for  the  Americans 
would  scarcely  have  fought  over  the  theory 
of   blockade    when    the    British    had    sus- 


INTERNATIONAL  EXPERIMENTS    165 

pended  their  practice.  The  American 
theory  of  search  was  that  the  belligerent 
right  of  search  extended  only  to  the  ascer- 
tainment of  the  nationality  and  destination 
of  the  vessel  and  the  possibility  of  contra- 
band goods  being  on  board.  The  complaints 
against  the  British  policy  of  extending 
search  to  the  mustering  of  the  crew  and  the 
seizure  of  seamen  claimed  as  British  sub- 
jects dated  back  to  the  early  days  of  our 
independence.  They  were  not  aimed  at  the 
doctrine  of  indefeasible  allegiance,  but  at 
the  presumption  of  Great  Britain  that  she 
had  a  right  to  enforce  her  municipal  law 
upon  non-British  vessels  on  the  high  seas. 
Liberal  thinkers  in  England  disapproved  of 
the  national  policy  in  this  respect,  but  there 
seemed  little  likelihood  that  the  policy  would 
be  altered.  The  whole  system  of  the  press 
gang  was  open  to  criticism,  but  ministers 
emphasized  the  necessity  of  securing  sailors 
to  man  the  fleets,  and  declared  that  impress- 
ment was  "a  right  upon  which  the  naval 


166       THE  FREEDOM  OF  THE  SEAS 

strength  of  the  empire  mainly  depends." 
On  the  other  hand,  the  mood  of  Americans 
who  regarded  England  as  "a  tyrant  pre- 
tending to  exclusive  dominion  upon  the 
ocean"  was  expressed  by  John  Quincy 
Adams  to  Madame  de  Stael:  "As  long  as 
they  felt  a  necessity  to  fight  for  the  practice 
of  stealing  men  from  American  merchant 
vessels  on  the  high  seas  we  should  feel  the 
necessity  of  fighting  against  it." 

However,  both  sides  were  soon  weary  of 
the  fighting.  Great  Britain  was  embar- 
rassed by  the  too  evident  interest  taken  in 
the  war  by  the  Czar.  His  offer  of  media- 
tion in  a  conflict  which  had  been  caused  by 
extensions  of  belligerent  right  was  too 
reminiscent  of  1780  and  1800  to  be  pleasing 
to  a  government  which  had  no  more  inten- 
tion of  yielding  its  contention  as  to  the 
limitations  of  neutral  right  than  on  former 
occasions.  The  British  assumption  was 
that  the  matter  was  a  kind  of  family  quarrel, 
in  which  no  outside  intervention  could  be 


INTERNATIONAL  EXPERIMENTS    167 

tolerated,  and  the  government  took  steps 
to  negotiate  a  peace  in  which  the  question 
of  maritime  right  could  discreetly  be 
avoided.  Such  a  peace,  after  tedious  nego- 
tiations, was  signed  at  Ghent,  and  the 
British  foreign  office  was  free  to  give  its 
entire  attention  to  settling  the  affairs  of 
Europe  at  the  Congress  of  Vienna. 

John  Quincy  Adams  was  more  correct 
than  usual  in  his  prophecies  when  he  de- 
clared that  the  main  accomplishment  of  the 
Congress  of  Vienna  would  be  the  sowing  of 
the  seeds  of  future  wars.  A  large  body  of 
opinion  was  more  optimistic.  Many  people, 
especially  in  England,  hoped  that  burning 
international  questions  would  be  so  settled 
as  to  make  a  reduction  of  armaments  pos- 
sible, and  render  wars,  if  not  impossible,  at 
least  far  less  frequent.  Nor  was  there  lack 
of  paving  material  in  the  way  of  good  in- 
tentions. It  is  well  known  that  the  erratic 
Czar  Alexander  I  meant  that  the  gather- 
ing should  be  marked  by  the  formation  of 


168       THE  FREEDOM  OF  THE  SEAS 

some  kind  of  league  of  nations.  In  the 
course  of  his  career,  his  ideas  on  this  sub- 
ject ranged  over  a  wide  field,  including 
mystical  notions  of  a  body  possessing  not 
merely  supernational  but  truly  supernatural 
powers,  and  finally  dwindling  to  the  sordid 
league  to  prevent  the  spread  of  liberal 
views  into  which  the  Holy  Alliance  finally 
degenerated.  The  scheme  he  had  submitted 
to  Pitt  in  1804>  went  to  neither  extreme,  for 
dismissing  perpetual  peace  as  a  mere  dream, 
it  proposed  a  league  which  would  guarantee 
national  rights,  assure  the  privilege  of 
neutrality,  delay  war  until  mediation  had 
proved  unavailing,  and  punish  breaches  of 
international  law.  The  part  of  the  plan 
that  had  to  do  with  neutrality  did  not  im- 
press Pitt,  engaged  as  he  was  in  a  maritime 
war  which  took  no  account  of  neutral  rights, 
but  as  a  means  of  guarantee  against  terri- 
torial aggressions  a  league  of  nations  ap- 
proved itself  to  him  and  to  his  successors. 
Such  a  league  Castlereagh  was  instructed 


INTERNATIONAL  EXPERIMENTS    169 

to  further  in  1814  at  Vienna.  One  of  its 
bulwarks  was  to  be,  in  accordance  with  the 
British  principle  of  keeping  the  Nether- 
lands out  of  the  hands  of  a  great  power,  the 
restriction  of  France's  maritime  power  by 
her  exclusion  from  Antwerp  and  the 
Scheldt.  Although  there  were  general 
hopes  in  England  of  arrangements  that 
would  mean  a  lasting  peace,  the  only  popu- 
lar mandate  to  the  British  representative 
was  that  he  see  that  steps  be  taken  to 
abolish  the  slave  trade.  The  fight  in  Eng- 
land to  end  that  terrible  traffic  had  been  a 
long  crusade  against  interest  and  prejudice, 
and  one  of  the  arguments  in  its  favor  had 
been  that  it  was  a  nursery  for  seamen. 
Having  made  the  traffic  illegal  for  English- 
men, the  nation  was  determined  that  the 
seas  be  freed  entirely  from  this  shame. 

With  England's  efforts  confined  to 
measures  against  the  slave  trade  and  the 
establishment  of  "security  for  the  future" 
while  her  allies  sought  "indemnity  for  the 


170       THE  FREEDOM  OF  THE  SEAS 

past,'*  the  Congress,  as  all  the  world  knows, 
made  its  settlement  on  the  ancient  principle 
of  bartering  about  peoples  as  pawns  in  a 
game,  the  noble  aims  of  Alexander  surviv- 
ing in  the  sounding  but  empty  phrases  of  the 
Holy  Alliance.  English  influence  pre- 
vented the  discussion  of  the  burning  ques- 
tion of  maritime  rights,  but  the  principle  of 
freedom  of  navigation  on  international 
rivers  was  recognized  in  the  arrangements 
for  the  Rhine,  and  the  Congress  advised 
that  the  principle  be  extended  to  all  in- 
ternational streams.  A  pledge  was  given 
for  co-operation  for  the  eventual  abolition 
of  the  slave  trade,  but  further  concessions 
were  necessary  if  the  aboUtion  was  to  be 
made  effective. 

Such  a  concession  Great  Britain  unsuc- 
cessfully sought  at  the  Congress  of  Aix-la- 
Chapelle,  called  in  1818  in  accordance  with 
the  idea  of  international  guarantee  which 
had  survived  the  Congress  of  Vienna.  It 
involved  the  recognition  of  a  mutual  right 


INTERNATIONAL  EXPERIMENTS    171 

to  search  vessels  in  time  of  peace.  British 
statesmen  took  pride  in  the  thought  that  it 
was  the  nation  whose  flag  had  always  floated 
proudly  on  the  seas  of  the  world  which  in 
the  cause  of  humanity  was  willing  to  take 
the  lead  in  yielding  the  right  of  search  of 
its  vessels  in  time  of  peace,  but  the  other 
powers  looked  with  suspicion  at  the  bearer 
of  gifts  thus  hall-marked,  fearing  that 
England  had  ulterior  motives.  As  a  matter 
of  fact,  since  it  was  British  ships  that  did 
the  greater  part  of  the  work  of  policing  the 
seas,  British  ships  would  be  much  more 
frequently  the  searchers  than  the  searched. 
The  Czar,  always  ready  to  contribute  his 
mite  toward  an  international  settlement, 
proposed  that  the  work  be  done  by  an  in- 
ternational police  force,  but  it  was  not  con- 
sidered prudent  to  encourage  the  appear- 
ance of  Russian  vessels  so  far  from  home 
as  the  African  coast. 

A  similar  difficulty  arose  in  connection 
with  England's  proposal  for  the  suppres- 


172       THE  FREEDOM  OF  THE  SEAS 

sion  of  the  Barbary  pirates.  Unkind  things 
had  been  said  for  generations  about  Great 
Britain's  lack  of  interest  in  making  the 
Mediten^anean  safe  for  commerce  by  sup- 
pressing these  pests,  from  whom  she  and  the 
other  great  powers  bought  immunity,  but 
who  prevented  their  weaker  rivals  from 
getting  any  considerable  share  of  the  Levant 
trade.  Sir  Sidney  Smith  had  formed  an 
order  of  knighthood  for  work  for  the  sup- 
pression of  the  evil,  and  maintained  a  lobby 
at  the  Congress  of  Vienna,  but  he  had  been 
unable  to  get  any  hearing.  Americans  are 
wont  to  feel  pride  in  the  knowledge  that 
it  was  the  achievements  of  America's  infant 
navy  which  first  demonstrated  that  force 
could  win  from  the  pirates  better  satisfac- 
tion than  tribute  could,  and  they  are  prob- 
ably entitled  to  feel  additional  satisfaction 
in  the  thought  that  it  was  following  Ameri- 
can successes  that  Great  Britain  proposed 
to  the  European  concert  that  Mediterranean 
piracy    be    suppressed.      Again    the    idea 


INTERNATIONAL  EXPERIMENTS    173 

of  an  international  police  in  which  Russian 
ships  would  figure  and  which  Great  Britain 
would  be  likely  to  control  was  regarded 
with  marked  lack  of  enthusiasm,  and  the 
pirate  question  was  left  to  be  dealt  with  by 
individual  action. 

The  question  of  the  Spanish  colonies  was 
also  broached  at  Aix-la-Chapelle.  Spain 
was  still  holding  to  her  theory  of  colonial 
monopoly,  having,  indeed,  little  but  the 
theory  to  which  to  cling.  She  had  made  a 
concession  on  the  point  of  monopoly  of  the 
western  seas  in  the  Nootka  Sound  conven- 
tion in  1790,  when  she  had  agreed  not  to 
interrupt  the  trade  of  the  English  on  Pacific 
coasts  not  occupied  by  her,  while  the  Eng- 
lish in  return  had  promised  not  to  engage 
in  navigating  or  fishing  within  ten  leagues 
of  the  coasts  actually  occupied  by  Spain. 
Such  an  agreement  was  convenient  and , 
practical,  but  it  involved  recognition  of  ex-  j 
elusive  rights  of  a  nation  outside  thei 
modem   conception   of   territorial   waters»\ 


174       THE  FREEDOM  OF  THE  SEAS 

which  had  come  to  be  considered  as 
measured  by  a  camion  shot,  and  estimated 
as  three  miles.* 

The  system  of  trade  restrictions  against 
which  the  American  colonies  had  revolted 
in  1776  was  still  theoretically  the  system  of 
Spain,  although  in  1793  she  opened  certain 
ports  under  restrictions,  and  against  it  and 
other  features  of  Spanish  policy  her  colo- 
nies had  begun  to  revolt  in  1809.  The 
movement  appealed  to  liberal  opinion  in 
Great  Britain;  it  also  appealed  to  business 
opinion,  for  British  merchants  promptly 
took  advantage  of  the  opportunity  to  trade 
with  the  revolted  colonies.  Consequently 
at  Aix-la-Chapelle,  the  British  representa- 
tive turned  a  deaf  ear  to  the  proposals  of 
France  and  Russia  to  help  Spanish  sove- 
reignty by  means  of  a  trade  boycott  of  the 
powers,  including,  if  possible,  the  United 
States. 

*  Jefferson  proposed  the  Gulf  Stream  as  the  "  natural  boun- 
dary "  of  American  territorial  waters. 


INTERNATIONAL  EXPERIMENTS    175 

Shortly  after  the  war  of  1812,  the  United 
States  made  a  general  offer  to  repeal  dis- 
criminating tonnage  duties  in  favor  of  any 
nation  that  would  give  her  reciprocal  treat- 
ment. The  Netherlands,  Prussia,  and 
Sweden  accepted  the  offer,  as  did  Great 
Britain,  but  her  action  was  restricted  to  her 
European  ports.  In  the  same  agreement, 
she  admitted  the  Americans  to  trade  with 
the  British  possession  in  India.  But  she 
refused  to  admit  them  to  her  West  Indian 
trade.  Only  a  few  months  after  assuring 
John  Quincy  Adams  that  England  had  no 
intention  of  altering  her  colonial  system  in 
that  respect.  Canning  told  him  that  all 
England  desired  was  to  persuade  Spain  to 
grant  a  ^'liberal  commercial  intercourse  be- 
tween her  colonies  and  other  nations,  similar 
to  that  which  we  allow  in  our  possessions  in 
India."  Adams  was  a  good  diplomat,  and 
it  was  not  until  two  years  later  that  he  made 
the  obvious  retort,  that  England  in  pur- 
suing her  "compromise  between  legitimacy 


176       THE  FREEDOM  OF  THE  SEAS 

and  profit"  would  find  that  her  suggestions 
had  more  weight  if  she  applied  this  liberal 
policy  to  all  her  own  colonies.  His  remarks 
had  more  weight  at  this  time,  because  con- 
tinued exclusion  from  West  Indian  markets 
had  led  the  United  States  to  the  policy  of 
retahation  in  kind,  which  was  keenly  felt 
by  British  merchants.  The  closing  of 
American  ports  to  British  vessels  in  the 
West  India  trade  was  an  argument  which 
led  to  the  conditional  opening  of  certain 
ports  to  Americans  in  1822. 

In  1822,  a  final  but  ill-fated  attempt  was 
made  to  induce  the  concert  of  Europe  to 
emit  harmonious  sounds  with  the  Holy  Al- 
liance wielding  the  baton.  The  Congress  of 
Verona  had  on  its  programme  several  items 
relating  to  maritime  affairs.  One  was  the 
ukase  of  the  Czar  issued  the  preceding  year 
which  reserved  commerce,  whaling,  and  fish- 
ing in  the  region  between  Bering  Straits 
and  the  fifty-first  parallel  to  Russian  sub- 
jects, and  forbade  foreign  vessels  to  ap- 


INTERNATIONAL  EXPERIMENTS    177 

proach  within  one  hundred  miles  of  the 
coast.  Against  this  application  of  the  doc- 
trine of  mare  clausum  to  Bering  Sea,  both 
the  United  States  and  Great  Britain  had 
protested.  The  measures  to  be  taken  to  end 
the  slave  trade  were  still  unsettled,  and  the 
Greek  insurrection  had  raised  questions  of 
blockade  and  other  belligerent  rights. 

But  the  most  important  question  before 
the  Congress  was  that  of  the  revolted 
colonies  of  Spain.  Too  late,  the  home 
government  promised  liberal  commercial 
arrangements  with  her  colonies  to  the  Euro- 
pean powers  if  they  would  help  restore  her 
sovereignty.  Matters  had  become  ex- 
tremely complicated  in  Latin  American 
waters.  The  Spaniards  had  proclaimed  a 
paper  blockade  of  Venezuela,  and  they  also 
declared  that  for  the  vessels  of  any  nation 
to  approach  any  port  on  the  Spanish  main 
was  a  breach  of  the  colonial  monopoly.  The 
commerce  of  the  United  States  and  Great 
Britain  suffered  most  by  the  situation,  as 


178        THE  FREEDOM  OF  THE  SEAS 

those  nations  carried  on  the  bulk  of  com- 
merce in  those  waters.  The  United  States 
had  recognized  the  belligerents,  and  Ameri- 
can commanders  had  orders  to  protect  the 
ships  of  all  nations  in  the  waters  about 
Cuba,  against  the  action  of  pirates  and  of 
the  Spanish  privateers,  who,  ostensibly 
enforcing  the  Spanish  monopoly,  or  the 
blockade,  were  indulging  in  practices  indis- 
tinguishable from  those  of  pirates.  The 
international  complications  resulting  from 
incidents  in  the  Caribbean  were  skillfully 
handled  by  Adams,  who  saw  a  great  future 
for  a  line  of  friendly  republics  in  the  new 
world.  Great  Britain  too  had  no  interest 
in  the  restoration  of  the  old  order.  The  in- 
terference with  her  commerce  in  the  new 
world  made  the  recognition  of  the  new  re- 
publics in  line  with  her  business  interests. 
At  Verona  she  informed  the  Powers  that  the 
depredations  of  the  pirates  would  force  her 
to  the  act  of  recognition.  In  fact,  the  policy 
of  the  Holy  Alliance  offered  none  of  the 


INTERNATIONAL  EXPERIMENTS    179 

solid  advantages  held  out  by  championship 
of  the  popular  principle  which  to-day  goes 
under  the  name  of  self-determination,  and 
Great  Britain  withdrew  from  the  Concert 
of  Europe  and  proceeded  to  call  the  new 
world  into  being  to  redress  the  balance  of 
the  old.  It  was  the  skill  of  Adams  that  so 
framed  the  new  world's  answer  as  to  establish 
a  new  line  of  demarcation,  which  sealed  the 
fate  of  the  old  colonial  system  by  laying  a 
ban  on  its  further  extension  in  the  new 
world. 

The  Congress  of  Verona  had  no  signal 
success  in  dealing  with  the  subject  of  sup- 
pressing the  slave  trade.  Great  Britain 
proposed  that  each  nation  denounce  it  as 
piracy;  that  steps  be  taken  to  prevent  the 
use  of  national  flags  by  foreigners  plying 
the  traffic;  and  that  colonial  products  of 
states  that  allowed  the  slave  trade  be  barred 
by  the  contracting  powers.  These  measures 
did  not  recommend  themselves  to  the  Con- 


180       THE  FREEDOM  OF  THE  SEAS 

gress,  and  it  contented  itself  with  a  general 
statement  of  disapproval  of  the  traffic. 

In  the  meantime,  England  tried  to  secure 
the  co-operation  of  America.  The  method 
which  appealed  to  the  English  as  the  most 
eflfective  for  dealing  with  the  problem  was 
an  international  agreement  for  a  mutual 
and  limited  right  of  search.  But  the  right 
of  search  was  connected  in  the  minds  of 
Americans  with  impressment  and  with  the 
war  of  1812;  moreover,  they  looked  with 
suspicion  on  the  movement  as  an  attempt  by 
Great  Britain  to  secure  recognition  of  a 
special  right  to  police  the  high  seas.  Still 
another  objection  was  that  Americans 
would  by  the  proposed  procedure  be  ex- 
posed to  the  jurisdiction  of  tribunals  wholly 
or  partly  foreign.  America  approved  of 
making  the  traffic  piracy  by  the  law  of  na- 
tions, but  Great  Britain  insisted  that  this 
would  imply  the  right  of  search.  Politics 
and  the  sensitiveness  of  the  slave  states  pre- 
sented effective  action  for  a  term  of  years, 


INTERNATIONAL  EXPERIMENTS    181 

during  which  the  trade  came  to  be  plied  to 
an  increasing  extent  under  the  American 
flag.  Great  Britain  in  1841  secured  the 
agreement  of  France,  Russia,  Austria,  and 
Prussia  to  a  mutual  right  of  search,  but  the 
United  States  would  not  yield. 

Our  representative  in  France,  Lewis 
Cass,  without  authorization  from  his  govern- 
ment intimated  that  we  were  prepared  to 
fight  against  any  such  pretensions.  The 
government  failed  to  disavow  this  appeal  to 
France,  "an  old  ally  of  the  United  States 
and  a  distinguished  champion  of  liberty  of 
the  seas."  Much  stress  was  laid  upon  the 
fact  that  England  had  never  abandoned  her 
claim  to  the  right  to  search  vessels  for  her 
subjects  on  the  high  seas.  However,  the 
British  special  representative  in  Wasliing- 
ton,  Lord  Ashburton,  while  refusing  to 
disclaim  the  right,  stated  parenthetically 
that  the  practice  had  ceased  and  could  not 
be  renewed  under  the  reformed  regulations 
for  manning  the  British  navy,  which  had 


182       THE  FREEDOM  OF  THE  SEAS 

by  that  time  abandoned  the  custom  of  seiz- 
ing seamen  either  at  home  or  abroad.  This 
statement  improved  the  situation  some- 
what. England  maintained  her  right  to 
ascertain  the  genuineness  of  a  flag,  and 
made  a  distinction  between  search,  which 
she  admitted  was  purely  a  belligerent  right, 
and  visit,  for  the  purpose  of  ascertaining  the 
genuineness  of  a  flag.  We  refused  to  admit 
this  distinction.  There  was  no  doubt  that 
many  slavers  protected  themselves  by  flying 
the  Stars  and  Stripes,  and  our  naval  vessels 
were  doing  little  to  prevent  this. 

But  we  stood  proudly  by  the  position  of 
guardian  of  the  freedom  of  the  seas  against 
any  claim  of  special  police  power  by  a  single 
nation.  Finally,  in  the  Webster- Ashburton 
treaty,  an  agreement  was  made  for  a  joint 
police  by  the  vessels  of  both  nations.  After 
the  beginning,  the  United  States  did  not 
carry  out  her  part  of  the  arrangement.  It 
would  be  unfair  to  judge  the  practicability 
of  an  international  police  of  the  sea  by  the 


INTERNATIONAL  EXPERIMENTS     18S 

failure  of  this  arrangement,  because  the 
attitude  of  the  slave  states  hampered  all 
efforts  to  deal  effectively  with  the  situation. 
The  British  government  continued  to  pro- 
test and  the  slave  trade,  under  the  stars  and 
stripes,  continued  to  increase.  The  English 
admitted  they  had  no  right  to  search  vessels 
bearing  the  American  flag,  however  strong 
the  suspicion  attaching  to  them,  but  the 
satisfaction  attached  to  this  acknowledg- 
ment of  the  legal  status  of  search  was  out- 
weighed by  the  consciousness  of  the  cor- 
rectness of  the  accusation  that  we  were 
allowing  our  flag  to  protect  criminals.  The 
outbreak  of  the  Civil  War  freed  the  hands 
of  our  government,  and  arrangements  were 
promptly  made  for  a  mutual  right  of 
search,  and  for  mixed  courts  for  the  trial  of 
the  slavers. 


VIII 

FREE  TRADE,  FREE  SHIPS, 
FREE  GOODS 


**  Le  syst^me  coloniale  que  nous  avons  vu  est  fini  pour  nous, 
H  Test  pour  tout  le  continent  de  I'Europe;  nous  devons  y  renoncer 
et  nous  rabattre  sur  la  libre  navigation  des  mers  et  I'enti^re  liberty 
d'un  ^change  universel."j 

Napoleon,  1816. 


VIII 

FREE  TRADE,  FREE  SHIPS, 
FREE  GOODS 

NAPOLEON,  meditating  at  St. 
Helena,  came  to  the  conclusion 
that  the  old  colonial  system  had 
been  a  failure,  and  that  free  seas  and  free 
trade  were  the  watchwords  of  the  future. 
Unfortunately,  the  manufacturers  who  had 
grown  powerful  under  his  restrictive  sys- 
tem were  able  to  prevent  France  from 
sharing  in  the  benefits  of  progress.  But  the 
British  people  in  the  period  of  trade  de- 
pression that  followed  the  great  wars,  came 
to  see  that  the  system  of  restrictions  that 
had  so  long  been  regarded  as  the  bulwark 
of  British  prosperity  might  perhaps  have 

187 


188       THE  FREEDOM  OF  THE  SEAS 

outlived  whatever  usefulness  it  may  have 
possessed.  These  suspicions  were  expressed 
in  Parliament  in  1817  by  one  of  the  most 
brilliant  politicians  of  the  day.  Brougham 
made  an  eloquent  speech  in  which  he  at- 
tributed the  existing  hard  times  to  the 
restrictive  commercial  system.  He  showed 
that  certain  protective  measures  recently 
adopted  had  been  injurious  in  their  effects, 
and  he  argued  that  with  the  possible  excep- 
tion of  the  Corn  Laws,  which  tended  to  make 
the  nation  independent  in  a  vital  necessity 
of  life,  all  restrictions  were  distinctly  harm- 
ful. The  Navigation  Laws  he  attacked 
vigorously:  perhaps  they  had  in  their  day 
/  been  useful  in  getting  trade  away  from  the 
Dutch,  but  now  they  were  inspiring  re- 
taliatory measures  from  America,  and  as  a 
result  of  the  system  of  which  they  were  the 
mainstay  Russia,  Prussia,  Spain  and  Aus- 
tria shut  their  doors  to  British  trade.  The 
vice-president  of  the  Board  of  Trade  said 
Brougham  was  right,  but  that  the  protected 


FREE  TRADE—SHIPS— GOODS        189 

interests  would  prevent  the  abandonment  of 
the  vicious  system.  In  1818,  an  object 
lesson  was  provided  by  the  American  ex- 
clusive measures  which  forced  the  free  port 
act. 

Two  years  later,  in  connection  with  dis- 
cussion of  the  trade  with  Latin  America, 
Canning  declared,  as  Shelburne  had  dore 
in  1793,  "Let  trade  be  open,  competition, 
enterprise,  capital,  would  ensure  her  due 
share  of  advantage  to  this  country."  But 
such  an  observation  would  have  left  the 
question  an  academic  one  had  not  the  people 
most  concerned  taken  a  hand.  That  same 
year  Parliament  received  a  petition  from 
London  merchants  which  pointed  out  that 
other  countries  were  establishing  tariff  bar- 
riers which  they  justified  by  the  prosperity 
of  England  under  a  restrictive  policy.  The 
merchants  suggested  that  the  adoption  of 
"a  more  enlightened  and  conciliatory  system 
by  England  would  be  the  best  means  of 
allaying  the  commercial  hostility  of  other 


190       THE  FREEDOM  OF  THE  SEAS 

nations."  Among  other  steps  in  this  direc- 
tion, proposed  by  Alexander  Baring,  the 
mercantile  authority  who  presented  the  peti- 
tion, was  the  repeal  of  some  duties,  the 
abolition  of  prohibitions,  and  the  abolition 
of  the  Navigation  Acts.  Again  the  vice- 
president  of  the  Board  of  Trade  said  the 
theory  was  good  but  the  practice  impossible, 
and  that  as  to  the  Navigation  Acts,  they 
were  sacred.  However,  the  wedge  had  been 
inserted  by  the  conversion  of  the  merchants. 
The  matter  would  not  down.  It  was  sug- 
gested in  one  debate  that  as  Great  Britain 
no  longer  had  the  undivided  empire  of  the 
sea,  she  must  be  content  with  a  fair  system 
of  competition,  and  that  she  might  well 
begin  by  a  simplification  of  the  some  two 
thousand  laws  which  complicated  the  work- 
ing of  the  Navigation  Acts.  One  objection 
to  any  innovations  in  the  commercial  sys- 
tem was  the  one  that  had  been  used  against 
the  treaty  of  1786  with  France:  that  it 
would  mean  the  development  of  commerce 


FREE  TRADE— SHIPS— GOODS        191 

in  Europe  in  place  of  overseas  commerce, 
and  that  this,  by  the  substitution  of  short 
voyages  for  long  ones,  would  destroy  the 
"nursery  for  seamen."  The  conservative 
members  made  appeals  to  cling  to  the  Navi- 
gation Acts,  "the  sheet  anchor  of  our  great- 
ness and  glory,"  and  argued  that  however 
advisable  any  change  in  the  system  might 
be,  it  would  not  be  expedient  until  all 
nations  adopted  it.  By  1822  the  vice- 
president  of  the  Board  of  Trade  had 
changed  his  views,  and  pointed  out  that  the 
sacred  system  as  a  matter  of  fact  was  no 
longer  entirely  intact,  and  that  it  might  as 
well  at  least  be  made  consistent.  When  the 
conservative  Lord  Liverpool  said  that  "the 
doctrine  was  no  longer  maintained,  that  to 
bind  the  trade  of  other  countries  was  ad- 
vantageous to  our  own,"  it  was  clear  that 
times  had  changed  indeed  and  that  the  old 
system  was  doomed. 

The  President  of  the  Board  of  Trade 
under  Liverpool  was  Huskisson,  no  theorist. 


192       THE  FREEDOM  OF  THE  SEAS 

but  a  man  who  dealt  with  cases  as  they 
arose.  He  saw  the  direction  in  which  the 
world  was  tending,  and  meant  to  keep  Great 
Britain  in  the  front  rank.  In  1822,  he 
followed  the  policy  outlined  by  Canning 
three  years  before,  and  suspended  the  Navi- 
gation Acts  for  Latin  America,  as  they  had 
been  for  the  United  States  and  for  the 
Portuguese  colonies:  that  is,  they  were  al- 
lowed to  bring  their  produce  into  Great 
Britain  under  their  own  flags.  He  also 
allowed  a  number  of  articles  to  be  exported 
from  non-British  ports  in  Europe  into  the 
British  colonies,  provided  they  were  brought 
in  British  vessels.  In  1825,  he  proposed 
opening  the  colonial  trade  fully  to  friendly 
states,  under  certain  limitations,  but  pre- 
serving the  principle,  later  to  be  enshrined 
in  American  policy,  that  all  trade  between 
the  colonies  and  the  mother  country  was  a 
coasting  trade,  and  thus  to  be  reserved  for 
British  bottoms.  But  Americans  were  not 
satisfied  with  the  concessions  of  1822.    Be- 


FREE  TRADE— SHIPS— GOODS        193 

lieving  that  the  arrangements  discriminated 
against  them,  American  merchants  exerted 
their  influence  to  secure  discriminating 
duties  on  British  vessels  bringing  West  In- 
dian goods  to  the  United  States.  In  1825, 
Parhament,  irritated  at  this  behavior, 
authorized  the  closing  of  colonial  ports  to 
American  vessels  until  the  discriminations 
should  be  removed.  The  fact  that  Ameri- 
cans were  carrying  on  some  of  the  trade 
between  Canada  and  the  West  Indies  also 
produced  irritation.  But  the  discriminating 
duties  were  withdrawn  by  the  new  admin- 
istration in  1830,  and  commerce  was  re- 
sumed. 

A  Prussian  order  in  1822  laid  discrim- 
inating port  duties  on  vessels  of  countries 
that  did  not  admit  Prussian  ships  on  prin- 
ciples of  reciprocity,  and  gave  notice  that 
this  would  be  followed  by  discriminatory 
duties  on  goods.  The  Prussian  government 
explained  the  act  as  a  measure  of  protection 
to  Prussian  shipping,  copied  after  English 


194       THE  FREEDOM  OF  THE  SEAS 

policy.  This  procedure  led  to  a  reciprocity- 
treaty,  and  brought  Huskisson  to  the  con- 
clusion that  England  was  at  the  parting  of 
the  ways,  and  must  choose  between  a  war 
of  duties  and  prohibitions,  and  a  general 
policy  of  reciprocity  in  shipping  matters. 
He  recommended  the  latter  as  likely  to  lead 
to  better  international  relations,  and  also  to 
the  actual  benefit  of  British  shipping,  as 
England's  great  rival,  America,  was  now 
an  important  factor  in  international  trade. 
Huskisson's  advice  was  followed,  and  the 
result  was  a  long  series  of  reciprocity 
treaties.  Huskisson  also  attributed  some  of 
the  business  difficulties  of  the  time  to  over- 
protection,  and  brought  about  some  reduc- 
tions in  duties  which  brought  forth  wails 
from  manufacturers.  Between  1830  and 
1840,  two  Europeans,  an  Englishman  and 
a  German,  visited  the  United  States,  and 
on  their  return  to  Europe  each  used 
America  as  a  text  to  advise  his  own  country 
to  adopt  a  different  economic  policy.    Fred- 


FREE  TRADE— SHIPS—GOODS        195 

erick  List,  believing  that  the  theory  of  free 
trade  was  the  policy  ultimately  desirable 
for  every  state,  thought  that  it  was  advis- 
able for  a  nation  during  its  period  of  de- 
velopment to  adopt  a  system  of  protection 
in  order  to  acquire  the  wealth  and  pros- 
perity which  would  make  it  in  time  able 
to  afford  the  luxury  of  free  trade.  He 
aided  the  protectionist  movement  while  in 
this  country,  and  provided  in  Germany  the 
theoretical  basis  for  nationalistic  protection- 
ism which  has  ever  since  been  the  backbone 
of  her  policy. 

Richard  Cobden  saw  in  America  what  she 
was  to  become,  a  great  industrial  nation 
reaching  out  with  her  commerce  into  all 
parts  of  the  world.  Englishmen  of  earlier 
generations  turned  their  minds  to  the 
crusliing  of  this  potential  rival  or  at  least 
stunting  her  growth.  To  Cobden,  who  be- 
lieved in  the  healthfulness  of  competition, 
the  right  course  was  to  make  England  ready 
for  the  struggle,  in  order  that  in  a  fair  field 


196       THE  FREEDOM  OF  THE  SEAS 

she  might  prove  herself  the  superior  of  her 
younger  competitor.  But  as  he  pointed  out, 
England  was  heavily  handicapped  in  two 
ways:  by  her  pohcy  as  self-constituted 
guardian  of  the  balance  of  power  in  Europe, 
and  by  the  system  of  restrictions  which 
hampered  her  trade.  The  British  gospel 
according  to  Cobden,  was  for  Great  Britain 
to  keep  out  of  Continental  bickerings,  and 
to  free  her  trade  from  all  restrictions.  He 
was  a  frightful  iconoclast,  and  attacked 
many  shrines  of  British  devotion.  He  in- 
quired where  lay  the  equity  in  forcing  na- 
tions at  the  cannon's  mouth  to  open  up  their 
trade.  He  pointed  out  that  it  was  not  by 
divine  right  that  Great  Britain  held  Gibral- 
tar; in  his  thought  the  strong  places  com- 
manding the  entrances  to  closed  seas  ought 
to  be  held  by  a  European  league.  He 
believed  that  government  should  apply  its 
energies  to  home  affairs,  and  let  commerce 
spread  in  foreign  countries  and  do  the  work 
of  maintaining  good  relations.    The  policy 


FREE  TRADE—SHIPS— GOODS        197 

of  America  seemed  to  him  a  model  one  in 
this  respect. 

Unsuccessful  in  converting  ministers  to 
his  foreign  policy,  it  was  in  conversion  of 
England  to  free  trade  that  Cobden  had  his 
great  success.  The  movement  in  that  direc- 
tion was  already  under  way.  Labouchere 
had  succeeded  in  obtaining  the  abolition  of 
prohibitions  in  the  colonies  in  1841,  and  in 
1845,  after  debates  extending  over  five 
years,  the  differential  duties  on  sugar  were 
abolished,  with  the  result  that  sugar  con- 
sumption in  Great  Britain  was  greatly  in- 
creased. Peel  secured  the  abolition  of  a 
number  of  duties  and  prohibitions  between 
1843  and  1846.  But  the  greatest  single 
step  was  the  repeal  of  the  Corn  Laws,  suc- 
cessfully engineered  by  Cobden  and  Bright. 
The  free  trade  movement  was  successful  be- 
cause the  idealists  who  looked  to  the  move- 
ment as  a  step  toward  a  world  order  of 
peace  and  prosperity  had  the  help  of  busi- 
ness interests  that  saw  the  prospect  of  better 


198        THE  FREEDOM  OF  THE  SEAS 

business  in  the  change.  The  repeal  of  the 
Corn  Laws  converted  the  English  people 
to  the  theory  of  free  trade,  and  its  complete 
establishment  was  only  a  matter  of  time. 

In  the  meantime,  the  finishing  strokes 
were  being  given  to  the  Navigation  Acts. 
Prussia,  in  return  for  a  most  favored  nation 
clause,  was  admitted  to  the  British  colonial 
trade.  In  1838  Austria  was  given  most 
favored  treatment  in  the  East  Indian  trade. 
Two  years  later  treaties  were  made  with  the 
Zollverein,  the  Hanse,  and  with  other  Ger- 
man towns.  The  Navigation  Laws  were 
again  modified  in  1847,  but  they  were  still 
inconsistent. 

In  1847  the  United  States  proposed 
a  reciprocal  arrangement  which  was  in- 
terpreted as  an  offer  to  open  the  Ameri- 
can coasting  trade,  but  although  Glad- 
stone seconded  the  proposal,  it  was  not 
accepted.  Two  years  later.  Great  Britain 
offered  to  open  her  colonial  ports  to  the 
United  States.     The  repeal  of  the  last  of 


FREE  TRADE— SHIPS— GOODS        199 

the  Navigation  Laws  was  forced  by  the  in- 
terest of  Canada,  whose  trade  was  suffering 
as  a  result  of  the  abandonment  of  preferen- 
tial duties. 

When  in  1854  it  became  evident  that  the 
bogey  of  Russian  expansion  was  likely  to 
lead  to  war  with  Russia,  the  representatives 
of  the  great  industrial  centers,  London  and 
Manchester,  began  to  ply  ministers  with 
questions  as  to  what  position  the  country 
was  prepared  to  assume  in  time  of  war  on 
the  subject  of  neutral  rights.  It  was 
pointed  out  that  there  was  little  Russian 
property  afloat,  but  great  quantities  of 
British  property;  that  an  arrangement  with 
the  United  States  to  recognize  that  free 
flags  made  free  goods  would  anticipate  any 
sympathy  being  shown  by  her  to  Russia, 
which  had  been  the  traditional  champion  of 
that  principle.  Great  Britain  would  gain 
rather  than  lose  by  such  an  arrangement, 
especially  as  the  geographical  position  of 
Russia  would  make  the  right  to  capture  her 


200       THE  FREEDOM  OF  THE  SEAS 

goods  on  neutral  ships  of  little  value. 
There  was  also  a  definite  advocacy  of  the 
abolition  of  privateering,  from  the  fear  that 
American  vessels  might  be  used  as  pri- 
vateers by  Russia  unless  her  s)Tnpathies 
were  engaged  on  the  other  side.  Consid- 
erations of  political  expediency  also  dictated 
that  Great  Britain  alter  her  usual  policy. 
France,  her  ally,  sometimes  recognized  the 
immunity  of  enemy  goods  under  a  neutral 
flag,  sometimes  went  back  to  her  old  doc- 
trine of  hostile  infection,  which  rendered 
liable  to  capture  neutral  goods  on  enemy 
ships  and  neutral  ships  carrying  enemy 
goods.  It  was  desirable  that  the  practice  of 
the  allies  should  be  imiform,  and  a  com- 
promise was  agreed  upon.  The  United 
States  proposed  to  all  belligerents  that  the 
immunity  of  neutral  goods  on  enemy  ships 
and  of  enemy  goods  on  neutral  ships  be 
recognized,  and  Prussia,  who  was  interested 
in  operations  against  commerce  in  the 
Baltic,  proposed  also  that  privateering  be 


FREE  TRADE— SHIPS— GOODS       201 

abolished.    The  suggestions  were  adopted  as 
the  procedui-e  for  the  war. 

When  the  Treaty  of  Paris  was  made  at 
the  end  of  the  Crimean  war,  an  interesting 
application  of  the  French  doctrine  of  free- 
dom of  the  seas  through  immimity  from 
warlike  operations  was  made  in  the  decision 
to  neutralize  the  Black  Sea.  This  was  done, 
however,  purely  for  the  purpose  of  weak- 
ening Russia  with  relation  to  Turkey,  and 
was  accepted  by  Russia  only  as  part  of  a 
dictated  peace  which  she  would  repudiate 
as  soon  as  opportunity  allowed.  The  provi- 
sion ran  that  the  Black  Sea  was  to  be  open 
to  the  mercantile  marine  of  every  nation  but 
in  perpetuity  interdicted  to  a  flag  of  war. 
As  the  Turk  was  keeper  of  the  gate,  and 
could  at  her  discretion  admit  ships  of  war 
in  an  emergency,  the  advantage  was  de- 
cidedly on  her  side.  The  war  was  really 
prolonged  a  year  in  order  to  put  the  allies 
in  a  position  to  dictate  these  terms,  which 
were  criticized  by  far-seeing  men  in  Eng- 


202       THE  FREEDOM  OF  THE  SEAS 

land  as  sowing  the  seeds  of  future  trouble. 
When  the  regular  work  of  the  Congress  was 
over,  the  French  representative  announced 
that  it  was  suitable  that  the  Congress  go  on 
record  as  having  achieved  something  not- 
able for  the  advancement  of  humanity.  He 
thereupon  submitted  a  brief  declaration, 
that  international  maritime  law  being  so 
uncertain  that  disputes  continually  arose  in 
time  of  war  as  to  the  respective  rights  of 
belligerents  and  neutrals,  the  signatory 
powers  would  seek  to  introduce  the  fixed 
principles  that  follow  that  privateering  was 
abolished,  that  enemy  goods  should  be  im- 
piune  on  neutral  ships  and  neutral  goods 
on  enemy  ships,  contraband  of  war  always 
excepted.  Blockades  to  be  binding  must  be 
effective.  Other  powers  were  invited  to 
accede,  and  all  the  leading  nations  did  so 
except  Spain  and  the  United  States. 
President  Pierce,  in  his  message  explaining 
to  the  United  States  our  refusal,  pointed 
out  that  the  United  States  had  proposed  at 


FREE  TRADE—SHIPS— GOODS        203 

Paris  the  recognition  of  the  immunity  of 
all  private  property  at  sea,  but  that  unless 
that  were  recognized,  the  United  States 
could  not  agree  to  abolish  privateering, 
since,  as  long  as  war  upon  commerce  was 
allowed,  the  United  States,  not  having  a 
large  navy,  must  depend  upon  privateers  as 
auxiliaries. 

Although  failing  to  co-operate  for  the 
defense  of  neutral  rights,  the  United  States 
was  at  this  time  working  for  another  form 
of  freedom  of  the  seas.  She  was  carrying 
on  a  campaign  against  the  Danish  tolls  for 
the  Baltic,  maintaining  that  they  implied 
recognition  that  a  single  nation  had  the 
right  "to  treat  one  of  the  great  maritime 
highways  of  nations  as  a  close  sea."  Presi- 
dent Pierce  took  the  stand  that  it  was  an 
American  policy  "to  maintain  the  freedom 
of  the  seas  and  of  the  great  natural  chan- 
nels of  navigation."  In  1859  she  won  her 
point,  and  the  dues  were  abolished. 

Although  the  powers  at  Paris  refused  to 


204       THE  FREEDOM  OF  THE  SEAS 

recognize  the  immunity  of  private  prop- 
erty, Lord  Palmerston  in  a  speech  to  Brit- 
ish ship-owners  in  1856  stated  that  he  hoped 
that  would  be  the  next  step  taken  for  the 
humanization  of  war.  This  was  regarded 
as  of  good  omen  by  shipping  interests, 
which  drew  the  attention  of  Parliament  to 
the  tendency  of  commerce  at  the  outbreak 
of  a  war  to  seek  neutral  bottoms  in  order 
to  be  immune,  and  argued  that  the  adoption 
of  the  American  doctrine,  which  would  put 
ships  on  the  same  footing  as  their  cargo, 
would  tend  to  preserve  commerce  for  the 
British  flag.  It  was  pointed  out  that  in 
order  to  be  effective  this  change  must  in- 
volve the  abolition  of  blockade  and  contra- 
band. Objection  to  the  further  weakening 
of  British  power  by  the  further  limitations 
of  belligerent  right  prevented  this  move- 
ment gaining  headway,  and  none  took  up 
the  proposal  of  one  member  that  maritime 
law  be  revised  by  an  international  congress 
whose  members  would  work  to  promote,  not 


FREE  TRADE— SHIPS— GOODS       205 

national  interests,  but  "the  general  welfare 
of  mankind  and  the  progress  of  humanity." 
Those  fearful  of  the  loss  of  British  naval 
supremacy  comforted  themselves  with  the 
thought  that  in  case  of  war  British  naval 
commanders  would  not  allow  ttiemselves  to 
be  hampered  by  the  Declaration  of  Paris. 
When  the  question  was  debated  in  1862, 
Lord  Palmerston  had  changed  his  opinion 
about  the  next  step,  and  Disraeli  maintained 
that  the  concessions  made  at  Paris  must  be 
withdrawn. 


IX 

THE  LAW  OF  THE  SEA 
YESTERDAY 


•*  We  declare  without  hesitation  that  the  right  of  the  neutral 
to  security  of  navigation  on  the  high  seas  ought  to  take  prece- 
dence of  the  transitory  right  of  the  belligerent  to  employ  these 
seas  as  the  scene  of  the  operations  of  war." 

Sir  Ernest  Satow. 

'*  If  all  materials  are  prohibited  out  of  which  something  may 
be  made  which  is  fit  for  war,  the  catalogue  of  contraband  goods 
will  be  immense,  for  there  is  hardly  any  kind  of  material,  out  of 
which  something  at  least,  fit  for  war,  may  not  be  fabricated. 
The  interdiction  of  these  amounts  to  a  total  prohibition  of  com- 
merce, and  might  as  well  be  so  expressed  and  understood." 

Bynkershoek. 


IX 

THE  LAW  OF  THE  SEA 
YESTERDAY 

THE  Declaration  of  Paris  was  the 
high  water  mark  of  the  limitation 
of  belligerent  right.  This  was  due 
in  part  to  the  pohcy  of  the  United  States. 
At  the  outbreak  of  the  Civil  War,  indeed, 
our  government  offered  to  accede  to  the 
Declaration  of  Paris.  Great  Britain, 
shrewdly  suspecting  that  the  offer  was  made 
in  order  that  the  privateers  of  the  South 
should  not  be  recognized,  insisted  on  a  clause 
excepting  the  existing  circumstances,  and 
our  government  accordingly  withdrew  its 
offer.  We  did  not,  however,  issue  letters 
of  marque,  although  Congress  authorized 
the  president  to  do  so.     At  the  beginning 

209 


210       THE  FREEDOM  OF  THE  SEAS 

of  the  war,  the  Confederacy  supplied  its 
lack  of  a  navy  by  commissioning  privateers, 
but  to  avoid  difficulties  as  to  their  status 
adopted  them  into  her  regular  forces,  as 
naval  vessels. 

It  was  by  the  decisions  of  om*  courts  that 
we  departed  from  our  traditional  attitude 
and  furnished  new  arguments  for  the  criti- 
cism of  national  prize  courts,  as  likely  to 
favor  the  belligerent  against  the  neutral. 
In  connection  with  the  blockade  of  the  Con- 
federate ports,  federal  vessels  captured 
neutral  vessels  carrying  goods  to  neutral 
ports  such  as  Nassau,  and  they  were  con- 
demned by  the  application  to  blockade  of 
our  country's  ancient  bete  noir,  the  doctrine 
of  continuous  voyage;  not  merely  by  the 
doctrine  as  originally  applied  by  England, 
but  by  a  novel  extension  of  it.  According 
to  the  British  usage,  the  capture  had  not 
been  recognized  before  the  second  stage  of 
the  voyage  was  entered  upon,  but  by  sev- 
eral decisions,  notably  in  the  famous  case 


THE  LAW  OF  THE  SEA  YESTERDAY    211 

of  the  Springbok,  captures  were  adjudged 
fair  when  made  in  the  first  stage  of  the 
voyage,  on  the  presumption  that  the  goods 
were  to  be  carried  from  the  neutral  port, 
in  the  same  or  another  vessel,  to  one  of  the 
Confederate  ports.  This  decision  was 
severely  criticized,  especially  by  continental 
powers,  but  Great  Britain  did  not  seriously 
protest  at  the  application  of  principles 
which  so  fitted  in  with  the  ancient  claims 
of  the  ruler  of  the  seas.  As  the  decision 
endangered  voyages  between  two  neutral 
ports  and  allowed  the  operations  of  a  block- 
ade to  be  extended  to  all  parts  of  the  high 
seas,  it  was  felt  in  many  quarters  to  be 
highly  destructive  of  the  freedom  of  the 
seas.  Whatever  the  merits  or  demerits  of 
this  famous  decision,  it  put  the  United 
States  on  the  side  of  extension  of  belligerent 
right,  and  our  own  arguments  were  turned 
against  us  in  the  late  war,  our  doctrine  prov- 
ing very  convenient  to  Great  Britain. 
The  United  States  also  sanctioned  the 


212       THE  FREEDOM  OF  THE  SEAS 

extension  of  contraband.  In  1862  coin  and 
bullion  were  added  to  our  contraband  list, 
and  decisions  of  our  courts  recognized  its 
extension  to  articles  not  hitherto  regarded 
as  necessary  in  war,  such  as  printing 
presses.  On  the  contrary  Great  Britain,  no 
longer  able  to  feed  her  population  from 
Home  supplies,  was  tending  toward  the 
abandonment  of  her  old  position  that  food- 
stuffs were  contraband. 

Our  famous  application  of  the  doctrine 
of  contraband  to  the  persons  of  Mason  and 
SUdell  was  taken  by  Europeans  as  another 
indication  that  the  days  of  American  cham- 
pionship of  neutral  right  were  gone  forever. 
Continental  authorities,  when  appealed  to, 
pronounced  the  capture  incompatible  with 
freedom  of  the  seas.  The  claim  of  Great 
Britain  was  based  on  the  argument  by 
which  we  had  formerly  attacked  impress- 
ment, and  we  had  the  satisfaction,  when  we 
yielded,  of  congratulating  the  English  upon 
defending  an  ancient  American  principle. 


THE  LAW  OF  THE  SEA  YESTERDAY    213 

The  Incident  may  be  regarded  as  closing 
the  long  controversy  between  the  two  coun- 
tries as  to  the  belligerent  right  of  search,  but 
in  connection  with  the  facihty  of  Americans 
in  abandoning  theories  in  favor  of  more 
tangible  considerations,  it  will  be  necessary 
to  take  up  the  recrudescence  of  the  question 
of  search  in  time  of  peace  that  took  place  in 
the  Bering  Sea  controversy.  In  1886  and 
1887  British  sealers  were  captured  in  Bering 
Sea  outside  territorial  waters  and  con- 
demned in  the  federal  court  at  Sitka  on  the 
ground  that  Bering  Sea  was  mare  clausum. 
It  will  be  remembered  that  the  United 
States  had  protested  against  the  Russian 
claim  to  that  effect  in  1821.  After  various 
positions  had  been  taken  by  our  govern- 
ment in  answer  to  the  British  protest  Secre- 
tary Blaine  disclaimed  the  mare  clausum 
argument  and  the  matter  was  submitted  to 
arbitration.  The  British  were  able  to  ad- 
duce the  American  stand  against  the  ex- 
ercise of  municipal  jurisdiction  on  the  high 


214       THE  FREEDOM  OF  THE  SEAS 

seas  in  the  case  of  impressment  and  of  the 
slave  trade.  One  of  the  American  lawyers 
claimed  that  the  freedom  of  the  sea  was 
only  for  innocent  and  inoffensive  use,  not 
for  the  invasion  of  national  interests,  which 
our  government  claimed  were  affected  by 
pelagic  sealing,  and  that  the  United  States 
had  only  exercised  on  the  high  seas  the 
right  of  self-defense.  He  rehearsed  the 
history  of  mare  liberum  from  this  point  of 
view,  and  claimed  that  the  right  of  search 
was  not  a  purely  belligerent  right.  This 
afforded  the  British  representative  an  op- 
portunity to  take  a  high  and  perfectly  well- 
grounded  position  from  the  point  of  inter- 
national law.  The  United  States,  having 
laid  itself  open  to  the  charge  of  attempting 
to  usurp  "special  privileges  and  special 
powers"  on  the  high  seas,  took  refuge  in  the 
position  that  if  international  law  did  not 
recognize  the  right  of  the  inhabitants  of  the 
deep  to  protection  it  ought  to  do  so.  Since 
the  decision  was  made  upon  legal  and  not 


THE  LAW  OF  THE  SEA  YESTERDAY    215 

moral  grounds  it  inevitably  went  against 
the  United  States.  The  shifting  grounds 
upon  which  the  American  clainis  were 
based,  and  the  change  in  the  American  atti- 
tude toward  search  when  we  had  interests 
to  defend  by  its  exercise,  justly  laid  us  open 
to  criticism,  but  after  a  certain  amount  of 
journalistic  jubilation  our  British  cousins 
charitably  allowed  dust  to  gather  upon  the 
memory  of  our  peccadillo.  It  is  not  unin- 
teresting to  recall  that  the  president  of  the 
tribunal  spoke  of  the  regulation  of  pelagic 
sealing  which  was  part  of  its  work  as  "a 
first  attempt  at  a  sharing  of  the  products 
of  the  ocean,  which  has  hitherto  been  di- 
vided." The  regulations  were  ineffective, 
but  as  controversies  still  arise  over  fisheries 
it  is  not  impossible  that  an  international 
jurisdiction  on  the  ocean  may  some  day 
provide  the  protection  whose  absence  our 
representatives  deplored. 

At  the  outbreak  of  the  Spanish  war  the 
United  States  declared  that  she  would  be 


216       THE  FREEDOM  OF  THE  SEAS 

governed  by  the  principles  of  the  Declara- 
tion of  Paris.  Spain  reserved  the  right  to 
issue  letters  of  marque,  but  instead  she 
organized  an  auxiliary  service  after  the 
method  initiated  by  Prussia  in  1870.  Ques- 
tions which  arose  during  that  war  as  to  the 
conversion  of  merchant  vessels  into  war- 
ship; the  treatment  of  enemy  vessels  on  the 
outbreak  of  war;  as  well  as  blockade  and 
contraband,  brought  home  forcibly  the  dif- 
ferences in  principle  between  maritime  law 
as  interpreted  by  different  countries. 

The  hope  for  some  general  agreement  on 
these  points  as  well  as  upon  the  use  of  new 
devices  in  warfare,  gave  warmth  to  the  wel- 
'  come  of  the  Czar's  proposal  which  brought 
about  the  first  Hague  conference.  It  is 
important  to  remember  that  in  the  two 
Hague  conferences  two  irreconcilable  forces 
were  at  work.  One  was  the  belief  in  the 
possibility  of  co-operation  between  nations 
that  would  make  wars  less  frequent;  the 
other  was  the  preoccupation  with  war  itself: 


THE  LAW  OF  THE  SEA  YESTERDAY    217 

the  desire  to  avoid  the  surrender  of  any 
practice  which  in  case  of  war  might  give 
advantage  to  the  enemy.  Andrew  D. 
White  expressed  this  somewhat  ruefully 
when  referring  to  his  colleague,  Captain 
Mahan:  "When  he  speaks,  the  inillennium 
fades,  and  this  stern,  severe,  actual  world 
appears." 

The  advocacy  of  the  immunity  of  private 
property  at  sea  had  come  to  be  regarded 
as  especially  an  American  doctrine,  and  the 
illustration  provided  by  the  work  of  Con- 
federate cruisers  of  what  conmierce-destroy- 
ing  meant  under  modern  conditions  had 
strengthened  its  hold  on  the  popular  mind. 
In  1871  the  principle  was  recognized  in  a 
treaty  with  Italy.  On  the  other  hand,  the 
American  navy  had  grown  to  be  a  formid- 
able institution,  and  it  was  well  known  that 
naval  opinion  was  against  the  doctrine;  in 
fact.  Captain  Mahan  was  publicly  on  record 
against  it.  However,  Mr.  White  made  an 
eloquent  appeal  that  the  doctrine  be  dis- 


218       THE  FREEDOM  OF  THE  SEAS 

cussed,  but  it  was  ruled  to  be  beyond  the 
competence  of  the  conference.  The  desire 
for  agreement  as  to  the  rights  and  duties 
of  neutrals  was  dismissed,  as  well,  with  the 
recommendation  that  the  two  questions  be 
taken  up  at  a  future  conference. 

Naval  men  in  Great  Britain  were  greatly 
exercised  lest  the  British  navy  should  be 
hampered  in  case  of  war.  Certain  disadvan- 
tages of  the  existing  system,  or  lack  of  it, 
were  apparent  during  the  Boer  war,  and 
in  1900  Mr.  Gibson  Bowles  made  them  the 
text  of  a  speech  in  the  House  of  Commons. 
Pointing  out  the  importance  of  sea  power; 
the  fact  that  two-thirds  of  the  world's  trade 
was  carried  by  sea,  and  that  the  power  in 
control  of  the  sea  was  in  a  position  prac- 
tically to  stop  the  supplies  of  the  enemy, 
he  lamented  that  since  the  Declaration  of 
Paris  the  navy  could  no  longer  be  used 
except  for  defense.  The  Russo-Japanese 
war  provided  an  illustration  of  the  unsatis- 
factory state  of  affairs,  and  the  necessity 


THE  LAW  OF  THE  SEA  YESTERDAY    219 

of  a  better  international  understanding  was 
mentioned  by  John  Hay  in  the  message 
which  proposed  the  calling  of  a  second 
Hague  conference. 

At  the  second  conference  a  very  strong 
plea  for  the  immunity  of  private  property 
was  made  by  the  American  delegate,  Mr. 
Choate.  The  chief  opposition  to  the  pro- 
posal came  from  Great  Britain,  Japan, 
Russia  and  France.  Germany  made  the 
important  point  that  the  question  was 
closely  connected  with  the  rules  for  contra- 
band and  blockade.  Russia  believed  that 
the  fear  of  loss  on  the  part  of  commercial 
interests  was  an  important  deterrent  from 
war.  Great  Britain  professed  readiness  to 
consider  the  subject  if  it  was  to  mean  the 
reduction  of  armaments.  British  opinion 
was  strongly  divided  on  the  subject.  Op- 
position to  the  proposal  was  based  upon 
recognition  that  her  chief  weapon  was  her 
naval  superiority,  and  that  the  chief  effect- 
iveness of  the  weapon  was  the  power  to 


u 


220       THE  FREEDOM  OF  THE  SEAS 

interfere  with  enemy  trade.  This  was  the 
familiar  argument  used  by  Pitt  against 
recognizing  "free  flag,  free  goods."  Com- 
mercial pressure  was  also  urged  as  a  means 
of  shortening  a  war.  On  the  other  hand, 
a  not-inconsiderable  body  of  opinion  in 
England  favored  immunity  partly  on  moral 
grounds,  partly  on  the  plea  that  England's 
enormous  commerce  and  her  dependence  on 
oversea  connections  for  vital  supplies  made 
immunity  desirable. 

Although  the  proposal  for  immunity  of 
private  property  was  rejected,  there  was  a 
very  strong  feeling  that  steps  must  be  taken 
in  the  direction  of  a  maritime  code.  The 
one  convention  that  had  any  extended 
recognition  was  the  Declaration  of  Paris, 
and  it  was  of  limited  importance  because 
not  every  gi-eat  power  had  acceded  to  it, 
and  because  with  no  general  agreement  as 
to  contraband  and  blockade,  a  great  deal 
of  it  was  made  ineffective.  To  the  great 
astonishment    of    the    conference.     Great 


THE  LAW  OF  THE  SEA  YESTERDAY    221 

Britain  proposed  the  entire  abolition  of 
contraband,  and  the  limitation  of  visit  to 
the  ascertainment  of  the  neutral  character 
of  a  vessel.  The  suggestion  of  a  strict 
definition  of  an  auxiliary  vessel  weakened 
the  concession  somewhat,  but  Great  Britain 
did  not  insist  on  making  abolition  contingent 
on  this  rule.  No  agreement  was  reached, 
suspicion  of  Great  Britain's  ulterior  motives 
apparently  contributing  to  the  refusal  of 
the  proposal,  which  meant  so  profound  a 
change  in  the  rules  of  capture. 

Great  Britain  and  the  United  States 
stood  together  on  the  question  of  blockade, 
involving  as  it  did  the  doctrine  of  continu- 
ous voyage,  which  continental  powers  re- 
fused to  recognize.  They  also  agreed  in 
opposing  the  Russian  proposal,  which  had 
the  support  of  Germany,  to  allow  the  de- 
struction of  neutral  prizes:  a  suggestion 
obviously  in  the  interest  of  states  not  pro- 
vided with  abundance  of  overseas  ports. 
The  attempt  to  regulate  the  laying  of  mines 


222       THE  FREEDOM  OF  THE  SEAS 

on  the  high  seas  led  to  a  long  and  violent 
discussion.  One  of  the  South  American 
delegates  made  an  impassioned  appeal  for 
the  mitigation  of  one  of  the  greatest  horrors 
of  war,  "the  hatred  of  man  extended  like 
a  curse  over  the  waves  of  the  ocean."  Such 
a  concession  would  prove  their  sincerity  in 
the  cause  of  humanity.  Great  Britain 
backed  the  proposal  strongly,  making  a 
strong  plea  for  the  rights  of  innocent 
navigation.  The  Russo-Japanese  war  had 
demonstrated  the  dangers  from  floating 
mines  long  after  the  period  of  hostilities 
was  over.  The  Central  Powers  opposed 
any  regulation,  although  Germany  declared 
herself  willing  to  agree  that  for  a  period  of 
five  years  floating  mines  be  forbidden;  "in 
the  expectation  that,  seven  years  hence,  it 
will  be  easier  to  find  a  solution  which  will 
be  acceptable  to  the  whole  world."  This 
was  the  German  idea  in  1907!  A  melan- 
choly interest  attaches  to  the  words  of  von 
Bieberstein:   "Military  acts  are  not  gov- 


THE  LAW  OF  THE  SEA  YESTERDAY    223 

erned  solely  by  principles  of  international 
law.  The  officers  of  the  German  navy,  I 
emphatically  affirm,  will  always  fulfill,  in 
strictest  fashion,  the  duties  which  emanate 
from  the  unwritten  law  of  humanity  and 
civilization." 

On  the  whole,  the  conventions  adopted  at 
the  Hague  with  regard  to  belligerent  right 
were  far  from  representing  much  advance, 
though  exception  should  be  made  of  the 
prohibition  of  bombardment  of  undefended 
ports,  the  adaptation  of  the  Geneva  con- 
vention to  maritime  war,  the  provision  that 
after  an  engagement  "as  far  as  military 
interests  permit"  the  shipwrecked  and  in- 
jured must  be  cared  for,  and  the  exemption 
from  capture  of  the  captain  and  crew  of 
an  enemy  merchant  ship  on  their  engage- 
ment not  to  take  part  in  the  hostilities.  A 
convention  on  the  rights  and  duties  of 
neutrals  was  difficult  to  frame  because  of 
the  conflicting  interests  of  states;  powers 
having  well  distributed  ports  standing  for 


224       THE  FREEDOM  OF  THE  SEAS 

strict  rules  as  to  the  use  of  neutral  ports, 
while  powers  not  so  well  provided  claimed 
more  generous  provisions. 

The  great  achievement  of  the  conference 
so  far  as  maritime  affairs  were  concerned 
was  the  establishment  of  an  international 
prize  court,  to  put  an  end  to  the  age-long 
dissatisfaction  with  national  decisions  by 
providing  a  court  of  appeal  whose  impar- 
tiality would  be  less  open  to  question.  The 
chief  arguments  against  its  establishment 
were  that  on  many  important  points  of  in- 
ternational law  there  was  no  general  agree- 
ment, and  ratification  of  the  convention 
establishing  the  court  was  withheld  until  a 
conference  should  agree  on  such  a  code. 
The  declaration  of  London  was  the  product 
of  such  a  conference,  and  provides  a  mag- 
nificent example  of  what  compromise  can 
fail  to  accomplish. 

The  declaration  settled  one  long-mooted 
point:  the  exemption  from  search  of  a  con- 
voyed fleet;  but  on  many  important  points 


THE  LAW  OF  THE  SEA  YESTERDAY    225 

qualifying  concessions  deprived  the  rule  of 
effectiveness,  as  where  the  destruction  of  a 
prize  was  allowed  when  necessary  for  the 
safety  of  the  warship  or  the  success  of  its 
operations.  The  contraband  arrangement 
satisfied  nobody,  for  while  the  .long  con- 
troverted question  of  foodstuffs  was  settled 
by  their  being  placed  on  the  conditional  list, 
the  exempt  list  contained  important  articles 
for  the  manufacture  of  munitions,  such  as 
cotton,  and  belligerents  were  allowed  to 
make  additions  by  proclamation.  The 
blockade  agreement  was  also  a  compromise, 
rejecting  the  application  of  the  doctrine  of 
continuous  voyage  to  anything  but  absolute 
contraband,  but  recognizing  the  British 
standard  of  effectiveness. 

The  British  Parliament  voted  against  the 
ratification  of  the  Declaration  of  London, 
after  a  prolonged  agitation.  The  argu- 
ments used  against  it  were  for  the  most  part 
the  same  arguments  that  had  been  used 
against  the  aboUtion  of  the  Navigation  Acts 


226       THE  FREEDOM  OF  THE  SEAS 

and  the  recognition  that  free  flag  makes 
free  goods :  that  it  would  mean  parting  with 
the  advantages  given  by  British  command 
of  the  seas.  The  agitation  had  a  very 
special  point  because  of  the  German  am- 
bition of  becoming  a  strong  military  and 
naval  power  at  the  same  time,  and  it  was 
felt  with  justice  that  weakening  British 
naval  power  strengthened  Germany.  When 
the  war  broke  out  in  1914  the  presumption 
was  that  the  belligerents  would  be  governed 
by  the  principles  agreed  upon  in  1856  in 
Paris  and  in  1907  at  the  Hague,  and  by 
the  precedents  of  former  wars.  It  is  un- 
necessary to  recall  here  the  suggestion  of 
the  United  States  that  the  belligerents  be 
governed  by  the  Declaration,  and  the  with- 
drawal of  the  suggestion  when  Great 
Britain's  acceptance  was  conditional.  Nor 
is  it  necessary  to  rehearse  the  events  of  two 
years  when  as  the  only  powerful  repre- 
sentative of  neutral  rights  we  divided  our 
protests  between  Great  Britain's  disregard 


THE  LAW  OF  THE  SEA  YESTERDAY    %rt 

of  the  rights  of  commerce  and  Germany's 
disregard  of  the  rights  of  humanity.  We 
began  by  reminding  Germany  that  since 
1785  we  had  co-operated  with  her  in  de- 
fending freedom  of  the  seas.  We  gave 
attention  to  German  explanations  of  what 
they  meant  by  freedom  of  the  seas,  which 
ranged  from  the  statement  that  they  meant 
a  balance  of  power  that  would  make  it  im- 
possible for  any  state  to  close  the  paths 
of  the  sea  to  commerce  at  the  outbreak  of 
a  war,  to  the  cynical  confession  that  they 
meant  the  substitution  of  German  domi- 
nance for  British  dominance.  We  Hstened 
in  bewilderment  as  they  explained  how  sea 
freedom  was  to  be  obtained  by  the  inde- 
pendence of  Ireland,  the  establishment  of 
German  cables  and  naval  bases,  the  neu- 
tralization of  the  Suez  Canal,  the  forbidding 
of  transportation  of  troops  by  sea,  as  well 
as  the  abolition  of  the  right  of  capture  and 
the  adoption  of  the  Declaration  of  London, 
which  was  a  "proclamation  of  freedom  of 


«28       THE  FREEDOM  OF  THE  SEAS 

the  seas."  We  looked  on  in  horror  as  the 
German  government  proceeded  to  carry  out 
its  announcement  that  it  intended  to  estab- 
lish freedom  of  the  seas  by  means  of  the 
submarine.  When  it  became  evident  that 
it  meant  to  persist  in  this  course  we  joined 
the  ranks  of  its  enemies  and  co-operated 
vidth  Great  Britain  in  an  extension  of  bel- 
ligerent right  for  the  cutting-off  of  enemy 
trade  to  an  extent  never  dreamed  of  even  in 
the  days  of  Napoleon. 

By  these  means  the  war  has  been  brought 
to  an  end,  and  the  world  now  faces  the 
task  of  making  a  settlement  which  shall 
establish  the  freedom  of  the  seas  both  in 
peace  and  in  war.  Freedom  of  the  seas  has 
been  violated  in  each  of  the  waj'^s  by  which 
it  has  been  violated  in  the  past.  The  claim 
to  monopohze  portions  of  the  sea  has  been 
revived  by  the  sowing  of  mines  and  the 
proclamation  of  danger  zones;  neutral  com- 
merce has  been  interrupted  to  an  extent 
unprecedented  in  any  previous  war;   and 


THE  LAW  OF  THE  SEA  YESTERDAY    229 

the  sea  lanes  have  been  made  unsafe  for 
travel  in  a  way  that  makes  the  days  of 
piracy  seem  days  of  gentle  usage. 

To  do  away  with  the  first  and  last  of 
these  evils,  or  at  least  to  provide  reasonable 
safeguards  against  them,  may  not  be  easy, 
but  at  least  opinion  the  world  over  is  fairly 
united  on  the  subject.  The  regulation  of 
belligerent  right  as  to  commerce,  after  a 
war  won  by  unprecedented  extension  of 
that  right,  is  a  problem  likely  to  tax  the 
utmost  ingenuity  of  the  makers  of  the  peace. 
We  have  seen  how  the  movement  for  the 
restriction  of  that  right  had  its  origin  in 
the  business  sense  of  a  trading  people  that 
retained  whenever  possible  the  status  of 
neutral,  and  how  the  movement  gained 
strength  in  the  period  of  eighteenth  cen- 
tury idealism,  when  war  was  conceived 
as  a  contest  of  armed  forces  only,  and  it 
was  felt  that  the  trader  ought  to  go  his  way 
undisturbed.  The  inclusion  of  the  trader 
of  the  belligerent  nation  in  this  thought  was 


230       THE  FREEDOM  OF  THE  SEAS 

natural,  and  the  whole  movement  gained 
ground  in  a  period  of  rapidly  expanding 
commerce  and  liberal  ideas,  until  the  im- 
munity of  private  property  at  sea  came  to 
be  regarded  as  the  synonym  for  freedom  of 
the  seas. 

The  first  check  came  when  the  chief 
champion  of  immunity  experienced  the  ad- 
vantages to  a  belligerent  of  the  extension 
of  belligerent  right,  the  second  with  the 
realization  that  in  the  race  for  armaments 
limitation  of  belligerent  right  was  a  weak- 
ening of  naval  powers  to  the  advantage  of 
powers  predominantly  military.  The  race 
for  armaments  itself  was  a  sign  of  the  dis- 
appearance of  the  point  of  view  of  the 
eighteenth  century  individuahst,  and  the 
war  just  ended  has  demonstrated  how  com- 
pletely it  has  been  buried  under  the  idea 
of  the  nation  in  arms.  If  the  war  has 
proved  anything  it  has  proved  that  under 
modern  conditions  the  old  safeguards  for 
the  neutral  are  of  no  avail,  and  that  in  a 


THE  LAW  OF  THE  SEA  YESTERDAY    231 

world  war  the  rags  and  shreds  of  any  mari- 
time code  with  no  better  guarantee  than  the 
past  has  provided  will  flutter  in  the  wind. 
If  maritime  codes  are  to  be  framed,  as  past 
codes  have  been  framed,  on  the  basis  of  ac- 
ceptance of  war  as  the  expected  state  of 
affairs,  instead  of  the  exception ;  each  nation 
will  agree  to  concede  only  what  it  thinks 
it  can  yield  without  weakening  itself  as  a 
belligerent,  and  the  resulting  compromise  is 
not  likely  to  be  more  satisfactory  than  the 
compromises  of  the  past.  When  after  cen- 
turies of  struggle  to  make  the  law  of  war 
on  the  sea  more  in  accordance  with  justice 
and  humanity  it  is  possible  for  the  argu- 
ment to  be  put  forth  that  the  revolting  act 
of  sinking  the  Lusitania  came  within  the 
letter  of  the  law,  is  it  not  time  to  tear  up 
the  poor  fabric  and  rear  a  better  law  upon 
a  better  basis? 


X 


THE  LAW  OF  THE  SEA 
TO-MORROW? 


"  This  therefore  is  the  mark  at  which  he  who  is  to  care  for  the 
world  must  chiefly  aim,  that  in  this  little  plot  of  earth,  belonging 
to  mortal  man,  life  may  pass  in  freedom  and  with  peace." 

Danie, 


X 


THE  LAW  OF  THE  SEA 
TO-MORROW? 

IT  is  said  of  Edmund  Burke  that  he 
once  told  Adam  Smith:  "You,  Dr. 
Smith,  from  your  Professor's  chair, 
may  send  forth  theories  upon  freedom  of 
commerce  as  if  you  were  lecturing  upon 
pure  mathematics ;  but  legislators  must  pro- 
ceed by  slow  degrees,  impeded  as  they  are 
by  the  friction  of  interest,  and  the  friction 
of  prejudice."  When  an  American  ex- 
professor  several  times  in  the  past  two 
years  fell  back  into  the  habits  of  the  lecture 
room  and  addressed  an  audience  of  legis- 
lators in  terms  quite  reminiscent  of  Adam 
Smith,  they  listened  without  protest.    In- 

235 


236       THE  FREEDOM  OF  THE  SEAS 

deed  it  seemed  to  many  of  them  that  these 
arm-chair  theories  might  perhaps  be  some- 
what useful  across  the  sea  in  counteracting 
the  effects  of  the  teaching  of  several  gen- 
erations of  German  professors.  But  when 
suddenly  events  so  framed  themselves  that 
it  seemed  possible  that  these  doctrines 
might  be  put  into  practice  throughout  the 
world,  there  was  something  like  a  panic 
among  the  legislators.  From  across  the 
seas  came  evidences  of  similar  panic,  and 
everjrwhere  the  practiced  ear  could  detect 
the  sinister  sounds  generated  by  the  friction 
of  interest  and  the  friction  of  prejudice. 

It  was  a  true  instinct  that  selected  free- 
dom of  the  seas  as  the  most  dangerous  por- 
tion of  President  Wilson's  utterances,  for 
these  pages  have  been  written  in  vain  if  they 
have  not  made  clear  that  freedom  of  the 
seas  when  used  as  a  war  cry  is  not  a  mere 
matter  of  belligerent  right,  but  that  it 
strikes  at  institutions  with  which  interest 
and  prejudice  are  closely  bound  up.    When 


THE  LAW  OF  THE  SEA  TO-MORROW    237 

it  has  been  raised  in  the  past  there  lay  be- 
hind it  either  resentment  at  inequalities  of 
opportunity  in  overseas  markets  or  jealousy 
of  the  power  that  controlled  the  seas.  The 
idea  that  he  who  controls  the  sea  can  sway 
the  land  is  older  than  the  phrase  of  Cicero, 
and  as  long  as  nations  fight  among  them- 
selves they  will  be  avid  of  sea  power.  The 
nation  that  rules  the  waves  to-day  is  the 
nation  that  ruled  them  in  the  days  when 
France  tried  to  wrest  the  trident  from  her. 
She  claims,  and  with  justice,  that  she  has 
used  her  power  to  make  and  keep  the  seas 
free  in  time  of  peace.  In  time  of  war,  she 
does  not  hesitate  to  state,  the  seas  must  be 
closed  to  her  enemies.  When,  as  in  the  war 
just  ended,  her  enemies  are  the  enemies  of 
all  freedom,  criticism  is  dumb.  But  it  will 
not  remain  dumb. 

In  the  seventeenth  century,  it  was  of 
Cromwell  that  Frenchmen  resentfully  re- 
lated that  he  had  publicly  declared  no  shot 
ought  to  be  fired  upon  the  seas  without 


238       THE  FREEDOM  OF  THE  SEAS 

England's  permission.  In  the  eighteenth 
century  they  were  telling  it  of  Pitt.  The 
importance  of  the  tale  lay  not  in  its  authen- 
ticity but  in  its  currency.  Frenchmen 
relished  what  it  implied  just  as  they  relished 
the  claim  of  Enghshmen  to  be  champions — - 
against  Frenchmen — of  the  liberties  of 
Europe.  It  is  not  difficult  to  find  in  cur- 
rent publications  evidences  that  the  France 
of  to-day  is  not  reconciled  to  the  idea  of 
permanent  naval  inferiority  to  England. 
Recent  indications  of  the  tenacity  of 
Italian  memory  of  the  days  when  the 
Adriatic  was  a  Venetian  lake  are  not  with- 
out significance.  The  dream  of  an  Ameri- 
can navy  which  will  in  perpetuity  act  in 
harmony  with  the  British  navy  without 
evoking  the  jealousy  of  the  rest  of  the 
world  is  a  beautiful  one — for  an  Anglo- 
Saxon.  And  a  difference  of  opinion  is  even 
conceivable  between  men  of  Anglo-Saxon 
blood  on  different  sides  of  the  Atlantic  over 
the  point  whether  the  British  or  the  Ameri- 


THE  LAW  OF  THE  SEA  TO-MORROW    239 

can  navy  ought  to  be  the  larger  of  the  two. 
The  only  possible  solution  for  this  as  for 
so  many  of  the  problems  raised  by  the  war 
is  international  control  of  the  seas  through 
a  league  of  nations.  Sea  law  has  always 
failed  under  stress,  not  alone  because  there 
was  no  general  agreement  as  to  what  was 
the  law,  but  because  there  was  no  generally 
recognized  tribunal  to  administer  it,  and 
no  generally  recognized  police  to  enforce 
it.  The  splendid  spirit  of  the  men  who  fol- 
low the  sea;  the  fine  traditions  which  have 
been  so  outraged  by  the  barbarities  of 
German  sea  practice:  these  are  things  too 
real  and  too  valuable  not  to  be  used  in  the 
service  of  all  humanity.  Is  it  inconceivable 
that  they  should  flourish  in  an  international 
fleet,  where  there  would  be  generous  rivalry 
on  the  part  of  every  man  that  the  con- 
tingent furnished  by  his  country  should  be 
second  to  none  in  spirit  and  in  excellence? 
The  experiment  is  surely  worth  trying,  and 
there  is  no  other  alternative  but  future  con- 


240       THE  FREEDOM  OF  THE  SEAS 

tention  for  that  so-called  sea  freedom  which 
really  means  sea  power. 

International  control  of  the  seas  would 
solve  the  problem  of  the  narrow  seas  as  well 
as  the  open  sea.  Neutralization,  applied 
in  the  past  to  arms  of  the  sea  and  existing 
on  paper  to-day  in  the  case  of  some  of  the 
strategic  waterways,  has  never  been  more 
than  a  stop-gap  device.  As  long  as  war 
on  land  is  recognized  peace  cannot  arbi- 
trarily be  enforced  on  portions  of  the  sea 
any  more  than  upon  the  sea  as  a  whole 
without  producing  inequalities  that  nations 
find  intolerable. 

In  the  league  of  nations,  also,  lies  the  hope 
of  solution  of  the  second  aspect  of  the 
problem  of  freedom  of  the  seas:  that  which 
has  to  do  with  those  parts  of  the  world 
where  the  labor  is  performed  by  yellow  or 
brown  or  black  men,  and  where  white  men 
covet  the  fruits  of  that  labor.  For  because 
prejudice  dies  hard  many  men  to-day  still 
believe  that  it  is  in  the  line  of  their  interest. 


THE  LAW  OF  THE  SEA  TO-MORROW    Ul 

and  the  interest  of  the  nation  to  which  they 
belong,  to  fight  making  commerce  free. 
We  go  about  among  our  felloAvs  without 
realizing  how  many  of  them  are  still  living 
in  the  seventeenth  century,  and  believing 
what  the  Germans  believed  when  they 
started  in  1914  to  put  their  faith  into  prac- 
tice: that  the  prosperity  of  one  nation  can 
be  secured  only  at  the  expense  of  another. 
Yet  what  is  shown  by  our  bird's-eye  view 
of  the  struggle  for  the  freedom  of  the  seas? 
With  very  human  instinct,  the  first  ex- 
plorers of  the  routes  to  the  Indies  sought 
to  monopolize  those  routes,  but  other  na- 
tions would  not  have  it  so,  and  each  fought 
till  it  had  gained  a  foothold,  which  each 
guarded  for  his  own  people  as  sedulously  as 
had  his  predecessor.  Yet  the  prosperity  of 
these  new  possessions  was  not  measured  by 
the  success  with  which  the  monopoly  was 
guarded,  and  only  those  states  retained  their 
overseas  possessions  that  learned  by  ex- 
perience   and    let    down    trade    barriers. 


242       THE  FREEDOM  OF  THE  SEAS 

When  we  consider  the  care  taken  to  pre- 
serve these  monopolies:  the  complex  laws 
and  prohibitions  and  discriminating  dues 
and  duties;  we  cannot  but  marvel  at  the 
achievement  of  humanity  in  creating  the 
wealth  of  the  modern  world  after  hamper- 
ing itself  in  so  many  unnecessary  ways. 
Only  of  late  years  have  attempts  been  made 
to  analyze  the  effects  of  these  devices  in 
particular  cases,  a  task  most  difficult  in  the 
absence  of  reliable  data  and  accurate  sta- 
tistics, but  in  the  case  of  one  device  that 
was  most  highly  prized,  the  navigation 
acts,  it  seems  to  have  been  fairly  demon- 
strated that  they  hindered  rather  than 
helped  the  development  they  were  devised 
to  foster. 

By  the  middle  of  the  eighteenth  century 
experience  was  bringing  wisdom,  and  clear- 
sighted thinkers  were  preaching  the  gospel 
of  the  mutuality  of  trade.  It  was  the 
good-fortune  of  the  United  States  that  her 
leading  statesmen  were  men  of  vision,  to 


THE  LAW  OF  THE  SEA  TO-MORROW    243 

set  her  in  the  path  of  freedom  which  in- 
deed was  the  path  of  interest  for  her.  She 
had  come  into  existence  as  a  nation  in  pro- 
test against  commercial  restrictions;  she 
had  no  colonies  whose  trade  could  be  used 
to  bargain  with;  and  if  she  were  to  be  ad- 
mitted to  the  markets  of  other  nations  re- 
ciprocity was  the  logical  basis  for  her  to 
propose.  She  set  her  face  against  the  policy 
of  exclusive  concessions  and  monopolies, 
and  championed  the  equality  of  all  nations 
m  the  markets  of  the  world.  She  also 
championed  the  equality  of  foreigners  with 
citizens  in  home  markets,  and  made  some 
progress  in  this  direction  along  the  line  of 
abolition  of  discriminating  dues.  How- 
ever, the  adoption  of  a  policy  of  protection 
definitely  stopped  one  line  of  progress,  and 
much  education  will  be  necessary  to  win  the 
people  of  America  to  that  form  of  free- 
dom, whose  advisability  Great  Britain  has 
just   triumphantly  vindicated,   and   which 


244        THE  FREEDOM  OF  THE  SEAS 

she  shows  signs  of  abandoning  while  the 
triumph  is  still  fresh. 

Long  ago  the  old  restrictive  colonial 
system  vanished.  The  Spanish  empire  fell 
to  pieces.  Although  Great  Britain's  self- 
governing  dependencies  put  up  tariff  walls, 
the  doors  of  her  colonies  remained  as  wide 
open  as  her  own.  As  the  United  States 
made  her  way  into  the  markets  of  the  Far 
East,  she  proclaimed  her  traditional  policy 
of  "equal  and  impartial  trade"  and  reaf- 
firmed it  when  by  acquiring  the  Philippines 
she  became  a  colonial  power.  Thanks  to 
the  navies  of  the  maritime  powers,  and  first 
among  them  to  the  navy  of  England,  the 
seas  to-day  are  free  in  time  of  peace,  and 
ports  and  coaling  stations  are  open  without 
question  to  the  ships  of  all  the  world.  But 
with  the  development  of  modern  industry, 
as  colonies  increased  in  importance  as 
sources  of  raw  materials,  and  profitable 
fields  of  investment,  the  old  desire  to  guard 
them   for   the   benefit   of   nationals   grew 


THE  LAW  OF  THE  SEA  TO-MORROW    245 

strong  again.  Mercantilism  revived  in  new 
forms.  Although  the  voice  of  the  United 
States  still  spoke  the  old  phrase  of  the  open 
door,  the  hands  could  not  always  be  dis- 
tinguished from  the  hands  of  the  conces- 
sion hunters  of  Europe.  The  extension  of 
our  navigation  laws,  which  meant  our  coast- 
ing trade  monopoly,  to  our  oversea  posses- 
sions, gave  rise  to  suggestions  on  the  part 
of  Englishmen  that  it  might  be  desirable  to 
re-enact  the  British  navigation  laws. 

Thus  the  world,  which  had  learned  by 
slow  and  bitter  experience  the  folly  of  trade 
restrictions  and  prohibitions,  closed  its  eyes 
to  the  restrictionist  policy  as  it  came  creep- 
ing back  in  an  altered  form.  And  it  is  to 
be  feared  that  the  commercial  issues  that 
were  among  the  roots  of  this  war,  obscured 
as  they  were  by  Germany's  lust  for  world 
dominion,  have  not  been  evident  enough  to 
convince  the  peoples  of  the  world  of  the 
dangers  that  may  accompany  the  great 
campaign   for  world   trade   that   is   again 


246        THE  FREEDOM  OF  THE  SEAS 

under  way.  Raw  materials  play  the  part 
in  the  twentieth  century  that  spices  did  in 
the  sixteenth,  and  unless  that  international 
co-operation  which  proved  so  successful  in 
winning  the  war  is  employed  and  extended 
to  deal  with  their  distribution,  the  wars  for 
the  control  of  raw  materials  will  differ  from 
the  wars  for  control  of  the  Indies  only  as 
submarine  warfare  differs  from  a  battle  be- 
tween pinnaces  and  galleons.  Prejudice 
and  interest  are  strongly  intrenched,  yet 
they  can  be  dislodged,  if  only  the  peoples 
would  war  with  their  intelligence  against 
the  foes  of  their  own  household  with  half  as 
good  a  will  as  that  with  which  they  answer 
the  call  to  war  in  the  trenches. 

If  the  world's  peace  is  to  prevail  upon 
the  world's  highway,  so  that  they  who  go 
down  to  the  sea  in  ships  may  ply  their  busi- 
ness on  the  great  waters  in  safety  and 
tranquillity,  there  must  be  international 
machiner}^  for  enforcing  the  law  of  the  sea, 
and    an    international    tribunal    to    judge 


THE  LAW  OF  THE  SEA  TO-MORROW    247 

transgressions  of  it.  Not  until  that  day- 
comes  can  it  be  said  with  truth  that  the 
law  is  lord  of  the  sea.  And  not  until  men 
of  all  nations  meet  in  perfect  equality  in 
the  markets  of  the  four  corners  of  the  earth 
shall  we  know  that  the  world  has  seen  the 
end  of  wars  for  the  freedom  of  the  seas. 


BIBLIOGRAPHICAL  NOTES 


BIBLIOGRAPHICAL  NOTES 

The  authorities  which  have  been  most  useful  in 
preparing  this  study  are  noted  here,  for  the  con- 
venience of  any  reader  who  may  wish  to  look  fur- 
ther into  the  subject;  a  complete  bibliography  for  a 
work  covering  so  long  a  period  would  occupy  a  dis- 
proportionate amount  of  space. 

For  the  treaties  it  is  necessary  to  depend  for  the 
most  part  upon  the  old  collections  of  Dumont,^ 
Rymer,^  Chalmers,  and  G.  F.  de  Martens,^  with 
their  admitted  defects.  For  the  treaties  relating  to 
America  we  have  the  absolutely  satisfactory  texts 
edited,  with  illuminating  comment,  by  Dr.  Daven- 
port,* but  the  volume  covering  the  period  to  1648  is 
the  only  one  yet  published.     The  treaties  to  which 

ij.  Dumont,  Corps  universel  diplomatique,  Amsterdam, 
1726-31. 

2T.  Rymer,  Foedera.  London,  1727-1735;  G.  Chalmers, 
Collection  of  treaties,  London,  1790. 

^G.  F.  de  Martens,  Receuil  des  principaux  trait^s,  2d  ed., 
and  continuations,  Gottingen,  1817-1909. 

*F  G.  Davenport,  European  treaties  bearing  on  the  history 
of  the  United  States  and  its  dependencies.  Carnegie  Institu- 
tion, Washington,  1917. 

251 


252       THE  FREEDOM  OF  THE  SEAS 

the  United  States  was  a  party  can  be  consulted  in 
Malloy,^  and  those  relating  to  Russia  in  the  admi- 
rable series  edited  by  F.  Martens.^  Hertslet  ^  is  con- 
venient for  the  nineteenth  century.  The  collections 
of  Rousset  *  and  Lamberty  ®  are  useful  for  documents 
and  reprints  of  pamphlets  not  easily  accessible  else- 
where, Robinson's  Collectanea  ^°  includes  much  doc- 
umentary material,  and  French  maritime  legislation 
before  the  nineteenth  century  can  be  consulted  more 
easily  in  Le  Beau  ^^  than  in  the  official  Bulletin.^^ 

Of  the  general  works  on  international  law  the  most 
useful  for  our  purpose  are  those  of  Calvo,^^  Nys,^* 
Westlake  ^*  and  Wheaton.^*  For  American  cases  the 
Digest  and   International  arbitration  of   John   Bas- 

»  W.  M.  Malloy.  Treaties,  S  vols.,  Washington,  1910,  1913. 

'F.  Martens,  Receuil  des  trait^s  conclus  par  la  Russie,  St. 
Petersburg,  1874-1909. 

'  Sir  E.  Hertslet,  Map  of  Europe  by  treaty,  London,  1875-1891. 

'  Rousset  de  Missy,  Receuil  historique,  Hague,  1728-1732. 

•  L.  B.  T.  Lamberty,  M^moires,  14  vols.,  Amsterdam,  1740- 
1757. 

"  C.  Robinson,  Collectanea  maritima,  London,  1801. 

*^  Le  Beau,  Nouveau  code  des  prises,  3  vols.  Paris,  1799-1801. 

*'The  guide  for  the  treaties  is  T6tot,  Repertoire  des  trait^s, 
Paris,  1866,  vol.  1. 

*'  C.  Calvo.  Le  droit  international,  6  vols.,  Paris,  1896. 

**  E.  Nys,  Droit  international,  2d  ed.,  Brussels,  1912;  Etudes, 
Brussels,  1896;  Origines,  Brussels,  1894.  J.  Westlake,  Interna- 
tional law,  Cambridge,  1913. 

"  H.  Wheaton,  Elements  of  international  law,  4th  English  ed., 
London,  1904;  History  of  the  law  of  nations,  N.  Y.,  1845. 


BIBLIOGRAPHICAL  NOTES  253 

sett  Moore  are  indispensable.^®  Useful  handbooks 
are  Westlake's  Chapters  ^^  and  Pitt  Cobbett's  Cases 
and  opinions. ^^  On  the  special  subject  of  maritime 
law  Nys/®  Dupuis  ^^  and  Twiss  ^^  have  perhaps 
been  most  serviceable.  For  special  aspects  of  mari- 
time law  mention  must  be  made  of  Atherley  Jones* 
Commerce  in  war  ^^  and  Pyke's  Law  of  Contra- 
band.^^ In  general,  it  may  be  said  that  the  his- 
torical sections  of  even  the  most  authoritative  of  the 
legal  treatises  must  be  used  with  caution,  so  tenacious 
have  been  some  of  the  errors  passed  on  from  the 
books  of  one  generation  to  those  of  another.  Articles 
in  the  American  Journal  of  International  Law  have 
corrected  many  errors  of  long  standing  on  points  of 
law. 

In  order  to  understand  the  development  of  the  law 
of  the  sea  it  is  necessary  to  become  familiar  with 

"  J.  B.  Moore,  Digest  of  international  law,  Washington,  1906 
International  arbitration,  Washington,  1898. 

"  J.  Westlake,  Chapters  on  the  principles  of  international  law, 
Cambridge,  1894. 

^  Pitt  Cobbett,  Cases  and  opinions  on  international  law,  Lon- 
don, 1913. 

^'  E.  Nys,  La  guerre  maritime,  Brussels,  1881. 

'°  Ch.  Dupuis,  Loi  de  la  guerre  maritime  aprSs  les  doctrines 
anglaises,  Paris,  1899. 

21  Sir  S.  Twiss,  Belligerent  rights  on  the  high  seas,  London, 
1884. 

22  L.  A.  Atherley- Jones,  Commerce  in  war,  London,  1907. 
"  A.  R.  Pyke,  Law  of  contraband,  Oxford,  1915. 


254       THE  FREEDOM  OF  THE  SEAS 

the  works  that  were  influential  at  different  periods. 
Grotius,^*  Bynkershoek,^^  and  Vattel  ^^  are  available 
in  English  translations.  Mably  ^"^  gives  the  key  to 
much  French  thinking.  The  development  of  the  con- 
tinental school  can  be  followed  in  Azuni/*  Ortolan,^^ 
Hautef euille  ;^^  Perels  *^  gives  the  German  stand- 
point. 

For  diplomatic  relations  before  1775  David  Jayne 
Hill  is  a  thoroughly  satisfactory  guide  ;*^  John  Bas- 
sett  Moore  in  his  American  diplomacy  ^^  touches 
briefly  on  all  points  important  for  America,  and 
Debidour  ^*  covers  European  diplomatic  history  from 
the  Congress  of  Vienna  to  the  Franco-Prussian  war. 

"  Grotius,  The  freedom  of  the  sea,  tr.  by  Ry  Magoffin,  N.  Y., 
1916. 

'*  Bynkershoek,  Law  of  war,  tr.  by  du  Ponceau,  Philadelphia, 
1810. 

*•  E.  de  Vattel,  Law  of  nations,  Northampton,  Mass.,  1805. 

^  L'Abb6  Mably,  Le  droit  publique  de  I'Europe,  Geneva,  1776. 

»  D.  A.  Azuni,  Maritime  law  of  Europe,  N.  Y.,  1806. 

"T.  Ortolan,  Ragles  internationales  et  diplomatic  de  la  mer. 
Paris,  1853. 

"  L.  B.  Hautefeuille,  Histoire  des  origines,  du  droit  maritime, 
2d  ed.,  Paris,  1869. 

'*F.  Perels,  Manuel  de  droit  maritime,  international  (tr.), 
Paris,  1884. 

'^  D.  J.  Hill,  A  history  of  diplomacy  in  the  international  de- 
velopment  of  Europe,  N.  Y.,  1905-1914. 

"  J.  B.  Moore,  Principles  of  American  diplomacy,  N.  Y.,  1918. 

**  A.  Debidour,  Histoire  diplomatique  de  I'Europe,  Pari^ 
1891-1908,  1916-1917. 


BIBLIOGRAPHICAL  NOTES  255 

No  one  has  yet  done  for  English  commercial  history 
what  Levasseur^^  has  done  for  that  of  France,  but 
the  compilations  of  Macpherson  ^®  and  Anderson  ^^ 
are  a  mine  of  valuable  material.  The  more  impor- 
tant books  on  the  subject  of  freedom  of  the  seas  have 
been  mentioned  in  the  text;  a  modern  study  of  the 
highest  value  is  that  of  Fulton/^  but  is  definitely 
limited  to  the  question  of  territorial  waters.  As 
far  as  possible  contemporary  pamphlets  and  letters 
have  been  used  for  the  estimating  of  public  opinion 
at  different  periods.  The  great  source  for  the  opin- 
ions of  the  governing  class  in  England  has  been  Han- 
sard;^® even  during  the  period  of  Dr.  Johnson's  re- 
portorial  acitivities  the  spirit  of  the  debates  if  not  the 
actual  words  survive. 

For  chapters  one  and  two,  the  chief  sources  are 
Dr.  Davenport's  volume  of  treaties  and  the  studies 
of  early  English  prize  law  by  Marsden.*^  The  ex- 
ploits of  the  French  mariners  are  fascinatingly  told 

^  E.  Levasseur,  Histoire  du  commerce  de  la  Prance,  Paris, 
1912. 

^  D.  Macpherson,  Anoals  of  commerce,  London,  1805. 

^  A.  Andersen,  Origin  of  commerce,  Dublin,  1790. 

"  T.  W.  Fulton,  The  sovereignty  of  the  sea,  Edinburgh  and  Lon- 
don, 1911. 

^  T.  Hansard,  Parliamentary  debates. 

^  R.  G.  Marsden,  Law  and  custom  of  the  sea.  Navy  Records 
Society,  London,  1915-16;  High  Court  of  Admiralty,  Roy.  hist, 
soc.,  tr.,  n.  s.,  v.  16;  Select  pleas  in  the  Court  of  Admiralty, 
Selden  Soc.,  London,  1894-1897. 


256       THE  FREEDOM  OF  THE  SEAS 

by  Guenin  *^  and  by  La  Ronciere.*^  An  interesting 
contrast  in  treatment  resulting  from  differing  points 
of  view  may  be  enjoyed  by  comparing  Corbett's  ac- 
count of  the  Elizabethan  seamen  *^  with  that  of 
Professor  Cheyney.**  The  Dutch  and  English  rivalry 
is  well  told  by  Edmundson.*'^  The  French  collection 
of  the  Carlcton  papers  gives  much  not  published  in 
the  English  collection.*®  Mims'  monograph  sheds  a 
flood  of  light  upon  the  policy  of  Colbert.*^  Professor 
Abbott's  recently  published  work  contains  much  that 
is  pertinent  and  gives  further  bibliographical  sug- 
gestions for  this  period.*^ 

The  story  of  the  Ostend  Company  is  told  fully  from 
the  Belgium  point  of  view  by  Huisman,  who  utilized 
extensive  Continental  sources.*®  .  .  .  G.  B.  Hertz 
tells  the  story  from  the  English  sources  in  the  Eng^ 

*^  E.  GuSnin,  Ango.  et  ses  pilotes,  Paris,  1901. 

<'  C.  G.  de  la  Ronci^re,  Histoire  de  la  marine  frangaiset  Paris, 
1899-1907. 

"  J.  S.  Corbett,  Drake  and  the  Tudor  Navy,  London,  1898. 

**  E.  P.  Cheyney,  A  history  of  England,  from  the  defeat  of  the 
Armada,  N.  Y.,  1914. 

"George  Edmundson,  Anglo-Dutch  rivalry,  Oxford,  1911. 

*^Sir  Dudley  Carleton,  Lettres,  memoires,  et  n6gociations, 
Hague,  1759. 

*^  S.  L.  Mims,  Colbert's  West  India  policy.  New  Haven,  1912. 

«  W.  C.  Abbott,  The  expansion  of  Europe,  N.  Y..  1918. 

^  M.  Hubman,  La  Belgique  commercials  Brussels,  1902. 


BIBLIOGRAPHICAL  NOTES  257 

lish  Historical  Review.''^  Both  cite,  and  quote  freely, 
contemporary  pamphlets.  Accarias  de  Serione  "^ 
and  Bertrand  de  Ulloa  ^^  give  contemporary  views  of 
commerce  which  may  well  be  compared  with  the 
modem  study  by  Professor  Haring.^^  The  war  of 
Jenkins*  ear  has  been  fully  treated  by  Temperley.^* 
Invaluable  contemporary  material  appears  in  the 
London  Magazine  and  Gentleman*s  Magazine. 
Coxe*s  Life  of  Walpole  ^^  contains  many  illuminating 
letters,  and  Yorke's  life  of  the  Earl  of  Hardwicke 
much  interesting  detail.^*  For  the  diplomatic  com- 
plications of  the  period  Baudrillart*s  Philippe  ^"^  is 
useful,  and  Satow's  careful  study  gives  the  details  of 
Frederick    the    Great's    controversy    over    maritime 

»  English  Historical  Review,  vol.  22,  255-279. 

'*  Accarias  de  Serione,  Les  interets  des  nations  de  TEurope, 
Leipsic,  1766. 

62  Bernardo  de  UUoa,  R^tablissement  des  manufactures  et  du 
commerce  d'Espagne,  tr.,  Amsterdam,  1753. 

"  C.  H.  Haring,  Trade  and  navigation  between  Spain  and  the 
Indies,  Cambridge  (Mass.),  1918. 

"  Transactions  of  the  Royal  Historical  Society,  1909,  pp.  197- 
236. 

""William  Coxe,  Memoirs  of  the  life  and  administration  of 
Sir  Robert  Walpole,  London,  1798. 

•*  P.  Yorke,  Life  and  correspondence  of  Philip  Yorke,  earl  of 
Hardwicke,  Cambridge,  1913. 

'^  C.  Baudrillart,  Philippe  V  et  la  cour  de  France,  Paris, 
1890-1901. 


258       THE  FREEDOM  OF  THE  SEAS 

rights."  The  Bernstoff ''^  and  Bedford^®  cor- 
respondence give  the  two  sides  of  the  controversy 
as  to  neutral  right  midway  in  the  century. 

For  chapter  four,  the  American  State  Papers  ®^ 
and  Wharton's  collection  of  letters  ®^  must  be  sup- 
plemented by  the  documents  in  Doniol  ®^  and  in  Cir- 
court's  edition  of  Bancroft.**  Fauchille's  study  of 
the  armed  neutrality  of  1780  is  based  on  documents 
in  the  French  archives.®^  The  anti-English  bias  of 
his  work  may  be  corrected  by  reference  to  Piggott's 
articles,  written  in  a  spirit  equally  partisan.***  The 
Malmesbury  letters  are  indispensable.*^ 

""Sir  E.  Satow»  The  Silesian  loan  and  Frederick  the  Great* 
Oxford,  1915. 

"  Correspondence  entre  comte  Bcmstorff  ct  le  due  de  Choiseul. 
Copenhagen,  1791. 

•°  Correspondence  of  John,  fourth  Duke  of  Bedford,  London, 
1846. 

•1  American  State  Papers,  Foreign,  Washington,  1832. 

•*  Revolutionary  diplomatic  correspondence,  edited  by  Francis 
Wharton,  Washington,  1889. 

•'  H.  Doniol,  Histoirc  de  la  participation  de  la  France  h,  T^ta- 
blissement  des  Etats-Unis  d'Amerique,  Paris,  1890. 

•*  A.  de  Circourt,in  vol.3  of  Bancroft,  Histoire  de  Taction  com- 
mune de  la  France  et  de  TAmerique,  Paris,  1876. 

•»  Paul  Faucbille,  La  diplomatie  francaise  et  la  ligue  des  neutres 
de  1780,  Paris,  1893. 

« In  Nineteenth  Century  Review.  1917,  vol.  81,  pp.  81^845; 
vol.  82,  pp.  149-168, 

•'  Diaries  and  letters  of  James  Harris.  6rst  earl  of  Malmesbury, 
London,  1844. 


BIBLIOGRAPHICAL  NOTES  259 

The  question  of  the  beginning  of  American  tariff 
policy  is  still  in  the  controversial  stage.  William 
Hill  brings  together  the  opinions  of  early  American 
statesmen/®  and  Professor  Taussig  is  an  authorita- 
tive guide  for  further  material.®^  The  debates  in  the 
House  of  Representatives  must  be  read  in  the  Annals 
of  Congress f^  for  the  Senate  debates  we  must  de- 
pend on  the  caustic  comment  of  Maclay.^^  The  ad- 
mirable work  on  American  commerce,  directed  by  E. 
R.  Johnson,  is  indispensable  for  the  main  features 
of  American  commercial  policy/^  Numerous  studies 
have  been  made  of  the  treaty  of  1786,  of  which 
Dumas*  work  deserves  especial  mention;  J.  Holland 
Rose  has  republished  with  some  changes  in  his  work 
on  Pitt  the  paper  which  first  appeared  in  the  English 
Historical  Review J^  The  Auckland  correspondence  ^* 
sheds  light  on  the  English  side  of  the  negotiations; 
for  the  French  side  see  the  bibliographical  notes  in 

"  W.  Hill,  First  stages  of  American  tariff  policy.  Publications 
of  American  Economic  Association,  vol.  8,  1893,  453  ff. 

«»F.  W.  Taussig,  Tariff  history  of  the  United  States,  6th  cd. 
N.  Y.  1914. 

''^  Debates  and  Proceedings  in  the  Congress  of  the  United  States, 
1789-1791,  Washington,  1834. 

'1 W.  Maclay,  Sketches  of  debate,  Harrisburg,  1880. 

'2  E.  R.  Johnson,  et  al  History  of  the  commerce  of  the  United 
States,  Carnegie  Institute,  Washington,  1915. 

'»  J.  Holland  Rose,  William  Pitt,  London,  1911. 

'^  Correspondence  of  William  Edec,  Lord  Auckland,  London, 
1861-1862. 


260  .    THE  FREEDOM  OF  THE  SEAS 

Levasseur.  French  revolutionary  procedure  must  be 
traced  in  the  Moniteur  and  in  the  Archives  parle^ 
mentairesJ^  Numerous  contemporary  reprints  of 
speeches  are  available  to  correct  the  latter  work. 
The  Proces  verhaux  ^®  of  the  committee  on  agri- 
culture and  commerce;  the  Actes  of  the  committee  of 
public  safety  ^^  and  the  Journal  des  debats  are  in- 
dispensable. 

The  studies  of  J.  Holland  Rose  provide  a  back- 
ground for  the  commercial  aspects  of  the  Napo- 
leonic wars.  The  careful  account  by  Professor  Lingel- 
bach  is  invaluable.^®  The  correspondence  of  the  French 
representatives  in  America  is  indispensable  for 
French  policy/®  and  the  correspondence  of  John 
Quincy  Adams  is  most  illuminating  for  Anglo-Ameri- 
can relations. ^'^  All  students  of  the  opening  period 
of  the  nineteenth  century  must  express  their  heavy 
obligation  to  Henry  Adams.®*  Mr.  W.  A.  Phillips 
has  outlined  acceptably  the  attempts  to  confederate 

'5  Mavidal  and  Laurent,  Archives  parlementaires,  Paris,  1867. 

'^  Proems  verbaux  du  comit^  de  Tagriculture  et  du  commerce, 
Paris,  1906. 

"  Actes  du  comil6  du  salut  publique,  Paris,  1889. 

"W.  E.  Lingelbach,  England  and  neutral  trade,  in  Military 
historian  and  economist,  April,  1917,  vol.  2,  pp.  153-178. 

''  In  American  Historical  Association,  Annual  Report,  1903, 
vol.  2. 

«>  John  Quincy  Adams,  Writings,  edited  by  W.  C.  Ford,  1914. 

"Henry  Adams.  The  United  States,  N.  Y.,  1889-1891;  The 
writings  of  Albert  Gallatin,  Philadelphia,  1879. 


BIBLIOGRAPHICAL  NOTES  261 

Europe.^^  Dr.  Dubois  is  a  reliable  guide  for  the 
literature  of  American  relations  to  the  slave  trade, 
and  Mr.  Lane-Poole's  readable  account  of  it  is  not 
unduly  British  in  tendency.*^  Dr.  Robertson  is  an 
authoritative  guide  for  Spanish-American  relations.®* 
The  fluctuations  of  public  opinion  on  commercial 
and  maritime  matters  can  best  be  studied  in  Han- 
sard, the  analyses  of  which  by  William  Smart  are 
exceedingly  valuable  for  the  brief  period  which 
they  cover.®^  Morley's  Cobden,^^  and  Trevelyan's 
Bright  ^"^  are  the  standard  guides  to  the  free  trade 
movement.  The  questions  of  maritime  law  brought 
forward  by  the  Declarations  of  Paris  and  London 
are  illuminated  by  a  mass  of  periodical  comment 
especially  in  the  English  reviews  and  the  Revue  des 
deux  mondes  An  interesting  example  of  hopeful- 
ness for  freedom  of  the  seas,  based  on  premises  no 
longer  tenable,  is  provided  by  F.  R.  Stark.®®  For 
The  Hague  conferences  the  documents  are  available 

"  W.  A.  Phillips,  The  Confederation  of  Europe,  London,  1914. 

^  Stanley  Lane-Poole,The  Story  of  the  Barbary  Corsairs,  N.  Y., 
1896. 

*♦  W.  S.  Robertson,  Rise  of  the  Spanish  American  republics, 
N.  Y.,  1918. 

8*  William  Smart,  Economic  annals  of  the  nineteenth  century, 
(1801-1830),  London,  1910,  1917. 

*  John  Morley,  Life  of  Richard  Cobden,  London,  1896. 

«  G.  W.  Trevelyan,  Life  of  John  Bright,  London,  1913. 

^  F.  R.  Stark,  The  abolition  of  privateering  and  the  declara- 
tion of  Paris.  N.  Y.,  1897. 


262       THE  FREEDOM  OF  THE  SEAS 

in  embarrassing  profusion;  of  the  secondary  works 
those  of  A.  Pearce  Higgins  ®'  and  James  Brown 
Scott  ^°  are  most  useful. 

For  the  question  of  maritime  law  raised  by  the 
great  war  the  diplomatic  correspondence  of  the 
United  States  with  belligerent  powers  during  the 
first  two  years  is  fundamental;  the  large  number  of 
works  published  since  August,  1914,  are  inevitably 
partisan  in  tone  or  tendency.  For  them  the  periodi- 
cal indices  furnish  the  most  satisfactory  guide. 

"  A.  P.  Hig^ns,  The  two  Hague  conferences,  Cambridge,  1909. 
^  James  Brown  Scott»  The  Hague  peace  conferences,  Baltimore* 
1909. 


THE 

Soul  of  Ulster 

BY 

ERNEST  W.  HAMILTON 

Author  of  Tht  First  Seven  Divisions 


WHY  DID   ULSTER  SO  BITTERLY 
RESIST  HOME  RULE? 

The  answer  to  the  query  is  given  us  in 
this  brilliantly  clever  and  yet  concise  re- 
view of  Ulster's  history  and  present  posi- 
tion. 

So  far  America  has  heard  only  one  side 
of  the  Irish  question.  Here  is  the  other, 
presented  to  us  by  a  man  who  was  for 
seven  years  Member  of  Parliament  for  an 
Ulster  constituency — North  Tyrone — and 
who  knows  whereof  he  speaks. 

The  Soul  of  Ulster  is  a  revelation; 
it  explains,  so  clearly  that  no  fair-minded 
reader  can  misunderstand,  why  Ulster 
threatened  to  resist  to  the  death  rather 
than  accept  the  Nationalist  Home  Rule 
scheme. 


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Under  Fire  (feu) 

By  HENRI  BARBUSSE 

Translated  from  the  French  by  FITZWATER  WRAY 

The  most  humorous  and  the  most  human  ac- 
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Humor,  grim  or  whimsical  or  genial,  vivifies  its 
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This  book  won  in  Paris  the  Goncourt  Prize  for 
the  best  work  published  in  France  last  year.  It 
has  sold  in  France  more  than  300,000  copies,  and 
an  American  lately  returned  from  that  country 
says  that  literally  every  one  there  who  reads  has 
read  and  is  talking  about  it. 

For  America  it  has  the  same  message  and  the 
same  interest  it  has  for  France. 

"  This  novel  is  epic  in  proportions,"  says  the 
New  Republic.  "  It  reduces  Mr.  Britling's  Intel- 
lectual Reactions  to  insignificance." 

Says  the  London  Observer:  "  Some  unknown 
man  of  genius,  who  calls  himself  Fitzwater  Wray, 
has  translated  the  supreme  novel  of  the  war  and 
here  it  is  in  its  divine  sublimity  of  truth,  undraped, 
and  unbedizened.  I  do  not  hesitate  to  put  it  on 
the  shelf  beside  Urquhart's  *  Rabelais'  or  Fitz- 
gerald's *  Omar,*  for  it  is  in  my  mind  already  a 
classic.    If  any  book  could  kill  war  this  is  that 

book."  

Si  .75,  net 

E.  P.  BUTTON  AND  COMPANY 
681  Fifth  Avenue        New  York  City 


(20) 


The  Inspiration  of  the  German  People  when 
they  awake  from  their  present  Nightmare, 

The  Coming 
Democracy 

By   HERMANN    FERNAU 

An  examination,  searching  and  merciless,  of 
Germany's  mediaeval  dynastic   and   political 
system,  by  the  author  of  "Because  I  Am  a 
German,"  and  a  demand  for  reforms  which  all 
civilized  countries  of  the  world  have  enjoyed 
for  decades. 

\ 

"The  book  is  one  of  the  most  important 
which  the  war  has  produced." — The  Spectator, 

"We  recommend  the  book  to  every  serious 
reader  as  one  of  the  foremost  books  of  universal 
and  pennanent  value  thus  far  inspired  by  the 
great  war. " — New  York  Tribune. 

"A  most  remarkable  book,  an  incisive  stmi- 
mary.  of  the  entire  Teutonic  situation,  a  book 
whose  conclusions  are  identical  with  President 
Wilson's  reply  to  the  Pope. " — Newark  Evening 
Call, 

Net  $2.00 

E.  P.  BUTTON  AND  COMPANY 
68 1  Fifth  Avenue              New  York  City 

(17) 


The  Best  Boohs  for  the  Mothers  and  Wives  of  Soldiers 

For  their  Sisters,  Fathers  and  Sweethearts 

And  also  for  the  Soldiers  Themselves 

A  Student  in 

First  Series        mW  IXlt^    Second  Series 
By  DONALD  HANKEY 

(Killed  in  Action  October,  191 6) 
The  Editor  of  the  London  Spectator  put  their  spirit 
into  a  nutshell  when  he  laid,  "One  rises  from  the 
Student's  booki  with  a  sense  that  man  is,  after  all, 
a  noble  animal  and  that,  though  war  may  blight  and 
burn,  it  reveali  the  best  side  of  human  nature  and 
sanctifies  as  well  as  destroys.'* 

Scores  of  war  books  have  told  what  war  does  to 
the  bodies  of  men.  Thete  books  are  concerned  with 
what  war  does  to  their  minds  and  souli. 

They  show  that  the  trenches  and  the  battle  line  and 
the  fighting  demand  and  bring  out  the  best  a  man 
has  in  mind  and  soul  as  well  as  the  best  he  has  in 
muscle  and  nerves.  Leading  critics  have  said  of 
them: 

**  Deserve*  a  place  beside  Mr.  Britling." 
''Bursting  with  the  things  we  all  want  to  know." 
"Wholesome  and  fine  and  human." 
"Will  comfort  the  mothers  of  soldiers." 
The  books  are  particularly  valuable  for  army  and 
navy  officers  and  for  Y.  M.  C.  A.  workers.     For  the 
man  in  the  ranks  there  could  be  no  better  gift  than 
these  two  books,   for  they  set  a  high  standard  for 
him  and  give  him  an  inspiring  example.     His  friends 
and    relatives    at    home    will    find    that    these    books 
hearten  and  comfort. 


Each  $1.50  net,  with  portrait 


E.  P.  BUTTON  AND  COMPANY 

681  Fifth  Avenue        New  York  City 


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YB  06223 


U.C.  BERKELEY  LIBRARIES 


CD51313blS 


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